Murph v. Bass

• Decision Date: 17 October 1925
• Docket Number: (No. 9415.)
• Citation: 276 S.W. 767
• Parties: MURPH et al. v. BASS et al.
• Court: Texas Court of Appeals

276 S.W. 767

MURPH et al. v. BASS et al.

(No. 9415.)

Court of Civil Appeals of Texas. Dallas.

October 17, 1925.

Appeal from District Court, Dallas County; Towne Young, Judge.

Injunction suit by D. H. Murph and another against W. A. Bass and another. From an adverse judgment, plaintiffs appeal. Reversed, and cause dismissed.

R. T. Meador, J. D. Kugle, and Wm. M. Cramer, all of Dallas, for appellants.

Baskett & De Lee, of Dallas, for appellees.

VAUGHAN, J.

Appellants, D. H. Murph and E. J. Callahan, instituted this suit in the trial court August 13, 1923, to enjoin appellees, W. A. Bass and Murray Fisher, constable of precinct No. 1, Dallas county, Tex., from making a levy under a certain execution issued upon an alleged void judgment rendered by the honorable county court of Hill county, Tex., on the 7th day of April, 1919, in cause No. 3723, wherein the Union Central Light & Power Company, a corporation, was plaintiff and appellants were defendants. The injunction was sought on the ground that the judgment in the county court of Hill county was void; said petition in that respect alleging "that said judgment above referred to, upon which said execution was issued, is absolutely void, in this, that the plaintiff in said judgment is alleged to be a corporation, and, as a matter of fact, there was no such corporation in existence in the state of Texas at the time said judgment was rendered or at the time of the filing of the suit in which said judgment was rendered; that, there being no such corporation in existence at said time, said suit brought in the name of such a corporation which did not exist, there was no plaintiff over which the court had jurisdiction, and the same is absolutely void." On the the petition for the writ being presented to the judge of the trial court an order was entered granting a temporary writ of injunction enjoining and restraining the levy of the execution issued upon the judgment rendered by the county court of Hill county; the clerk of the district court of Dallas county being instructed to issue said temporary writ of injunction in the terms of the order granting same upon said petition being duly filed in the trial court and the execution of bond in the amount stated in said order, said writ being made returnable to the trial court.

Appellees' answer, in addition to other pleas, included general exception, general denial, and a plea to the jurisdiction as follows:

"That this is a suit to set aside the judgment of the county court of Hill county, Tex., and to enjoin its execution, alleging that said judgment is void, that said judgment is regular on its face, and the defects charged, if they constitute any defects whatever, are matters outside the record and must be established, if at all, by testimony dehors the record; that therefore this court has no jurisdiction thereof, but the jurisdiction thereof lies in the court rendering said judgment, to wit, the county court of Hill county."

On the 30th day of June, 1924, this cause was heard on its merits, resulting in a judgment dissolving the temporary writ of injunction theretofore granted and otherwise denying to appellants the injunctive relief sought against appellees, the rendition of which judgment is questioned on this appeal by appropriate assignments of error. The jurisdiction of the trial court to hear and determine the cause for injunctive relief as made by appellants' petition depended upon said petition disclosing affirmatively by appropriate allegations that the judgment sought to be enjoined was absolutely void. T. & P. R. Co. v. J. E. Butler, 52 Tex. Civ. App. 327, 135 S. W. 1064; Wheeler v. Powell et al. (Tex. Civ. App.) 114 S. W. 689. In all other cases it is imperative under subdivision 3 of article 4643 and article 4653, V. S. T. C....