Miller v. Clements
| Decision Date | 08 March 1881 |
| Docket Number | Case No. 659. |
| Citation | 54 Tex. 351 |
| Parties | A. S. MILLER ET AL. v. A. N. CLEMENTS ET AL. |
| Court | Texas Supreme Court |
ERROR from Gonzales.Tried below before the Hon. John P. White.
Suit by injunction by plaintiff in error to restrain the collection of a monied judgment.It is alleged in the petition for injunction, that, pending a suit in the district court of Gonzales county by defendant in error against his former guardian, upon his bond, the plaintiff in error (who was one of the sureties) was duly declared a bankrupt, and proceedings were stayed in the cause for several year; that afterwards the bankrupt made no further appearance in the cause, and that finally judgment was rendered against him for the sum of $774.86 on the 10th of November, 1870.It is alleged that plaintiff had notice of the proceedings in bankruptcy; that complainant knew nothing of the rendition of judgment against him until 1874, and that he was unrepresented in court.It is shown by the bill that the discharge in bankruptcy was never pleaded, and the court had no notice that the said complainant had ever been discharged in bankruptcy, nor is it alleged that the claim was ever proven up against the bankrupt estate in the bankrupt court.
Another cause of complaint made in the petition for injunction was, that the execution issued upon the judgment was put into the hands of a special deputy sheriff, and it is alleged in the bill that there is no such officer known to the law, and that his acts are void.
Another complaint is, that the officer made no demand for a levy, but proceeded to levy on a bale of cotton; that the defendant in the execution executed a replevin bond for the sum of $60, the value of the bale of cotton; that the cotton was not forthcoming at the day of sale, and the bond was returned by the officer forfeited; that thereupon an execution was issued against the defendant and his sureties upon the replevin bond for the sum of $60 and costs, and complaint is made that the execution was not issued for the full amount of the original judgment, thus dividing the judgment against the defendant into two separate debts, which is alleged to be unlawful.The above constitute the only grounds made in the bill for injunction.For these reasons prayer was made to restrain further proceedings under the execution, and to restrain the plaintiff in the judgment from suing out any other executions, and that the judgment be declared void.
The court granted the prayer of the petition, and fixed the amount of the bond to be executed by complainant at $150.
At the ensuing term the defendants pleaded to the bill by special exceptions, and motion to dissolve the injunction; and also, at the same time, filed a general demurrer and answer to the merits.The court sustained exceptions and granted the motion to dissolve.To this the complainant excepted, and gave notice of appeal.There was no motion to holdthe bill over to be tried on the facts.There was judgment against the complainant and his sureties on his bond for the full amount of the bond, viz.: $150.From this judgment a writ of error was sued out.The assignments of error are, that the court erred--
1.In dissolving the injunction.
2.In entering final judgment on the dissolution of the injunction.
3.That the reasons for dissolving the injunction were not sworn to.
4.That the judgment was excessive.
5.That it was contrary to law and the facts.
Miller & Sayers, for plaintiffs in error.
Harwood & Winston, for defendants.
1.The injunction issued in this case was properly dissolved.It issued more than a year after the rendition of the judgment it enjoins.The judgment was rendered on November 10, 1870.The petition was filed January 30, 1875.Pasch.Dig., art. 3931.
2.Nor is any good reason shown why the writ was not sooner sued out.He charges neither fraud nor false promises practiced or made by the plaintiffs in the judgment.
3.Nor was the judgment a nullity by reason of anything he has alleged.The suit against him was instituted in 1865.It remained pending and was continued from term to term until matured into a judgment.He avers that he obtained a discharge in bankruptcy in 1868; that plaintiff had legal notice of that fact; that by the provisions of the general bankrupt law, all proceedings in the district court of Gonzales county against him were stayed; that the court had no jurisdiction...
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