Hubbart v. Willis State Bank

• Decision Date: 30 April 1909
• Citation: 119 S.W. 711
• Court: Texas Court of Appeals
• Parties: HUBBART et ux. v. WILLIS STATE BANK.<SMALL><SUP>†</SUP></SMALL>

119 S.W. 711

HUBBART et ux. v. WILLIS STATE BANK.^†

Court of Civil Appeals of Texas.

April 30, 1909.

Rehearing Denied May 27, 1909.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

Suit by Joseph Hubbart and wife against the Willis State Bank for an injunction. From an order dissolving a temporary injunction, plaintiffs appeal. Order set aside, and writ reinstated.

A. W. Morris, Jr., for appellants. S. A. McCall, for appellee.

REESE, J.

This is an appeal from an interlocutory order made in vacation by the district judge dissolving a temporary injunction previously granted by him on motion of appellee.

The material facts set up in the petition for injunction are, in substance, that appellee, the Willis State Bank, on December 29, 1908, instituted suit in the district court against appellants for debt and foreclosure of a chattel mortgage on certain horses, mules, and wagons; that on February 24, 1909, the clerk of said court issued an order of sale purporting to be issued upon a judgment in said cause, which had been levied by the sheriff upon the property described therein; and that the same had been advertised for sale by the sheriff. The petition further states that the purported judgment upon which the order of sale issued was entered in the minutes of said court by the district clerk after the minutes had been signed by the district judge, and after the court had adjourned for the term, and that the issuance of the execution upon such judgment was without authority and the execution void. As a further ground for the interposition of the court by writ of injunction, it is stated that appellants are engaged in farming, having under cultivation 200 acres of land of their own and 100 acres rented, that they have hired hands to assist in the cultivation of said land, in which cultivation they expected to use the teams and wagons seized by the sheriff, without which they would be unable to carry on said farming operations, which would result in the entire loss of any crop on said lands, for which they had no adequate remedy at law. The petition was duly verified by affidavit of appellants. The temporary writ was granted by the district judge in chambers March 7, 1909, returnable to the next regular term of said district court in July, appellants executing satisfactory bond in the sum of $1,362.80. On March 12th defendants filed their answer to said petition, in which it alleges the filing of the suit by them for debt and foreclosure; that citation regularly issued and was served; that defendants Joseph Hubbart and Kate Hubbart made default, and on January 12, 1909, while said court was in session, a judgment was rendered by said court in favor of plaintiff, the Willis State Bank, and against Joseph and Kate Hubbart for their said debt with foreclosure of their chattel mortgage; that thereupon, on January 20, 1909, counsel for plaintiffs prepared a draft of a judgment in conformity with the judgment rendered, and the judge of the court having signified to counsel that he did not care to inspect the same, it was handed to district clerk, with instructions immediately to enter same upon the minutes of the court. It is further alleged that thereafter, the exact date whereof cannot be stated by defendant, the judgment was entered in the minutes of the court.

It appeared from both petition and answer that the district court convened on the 11th day of January, 1909, and adjourned for the term on February 2, 1909. The answer of defendant was not sworn to. Defendant also as a part of its answer presented a general demurrer and several special exceptions to plaintiffs' petition, and upon this answer also presented its motion to dissolve the temporary injunction. Upon the hearing of the motion, the general demurrer and special exceptions of defendant were all overruled by the judge. In addition to the sworn petition, plaintiffs presented the affidavits of the district clerk and also of A. W. Morris, counsel for plaintiffs, showing conclusively that, in fact, the judgment upon which the execution was issued was entered upon the minutes of the court by the district clerk after the minutes had been signed by the judge, and after the court had adjourned for the term. The district clerk so positively states, and Morris states in his affidavit that about February 15, 1909, the court having adjourned on February 2d, he examined the minutes of the court with a view of ascertaining the kind of a judgment that had been rendered in said cause, and that at that time there was no entry upon the minutes of the court of such judgment. It was shown for defendant that there was a regular judgment upon the minutes in favor of the Willis State Bank and against Joseph and Kate Hubbart for debt and foreclosure as set out in the execution or order of sale sought to be enjoined. No attempt was made to show when such entry was made, or to contradict the allegations of the petition and supporting affidavits as to the facts of the entry of the judgment after adjournment of court. The district judge upon the hearing, after overruling the demurrer and exceptions of defendant, dissolved the injunction, and refused to allow an entry of the judgment nunc pro tunc upon defendant's application for such order.

There is but one question presented by the appeal, which is: Was the clerk authorized to enter the judgment in vacation after the minutes had been signed by the judge, and the court adjourned for the term, and to issue an execution upon such judgment. The district judge overruled the general demurrer and special exceptions to the petition, thus, in effect, holding that the facts stated were sufficient to authorize the granting of the temporary injunction. The one essential fact, that the judgment was entered after adjournment, was not even denied by the unsworn answer, and was established beyond controversy by the sworn petition and supporting affidavits. In such case it is difficult to understand upon what ground the injunction was dissolved. Article 3006, Rev. St. 1895. The contention of appellee is expressed in the following proposition: "Execution or order of sale may issue on a judgment duly rendered, although it has not been entered." And the further proposition that the entry of the judgment on the minutes, being a ministerial act, could be done...