Race v. Decker

• Decision Date: 14 June 1919
• Docket Number: (No. 9186.)
• Citation: 214 S.W. 709
• Parties: RACE v. DECKER.
• Court: Texas Court of Appeals

214 S.W. 709

RACE v. DECKER.

(No. 9186.)

Court of Civil Appeals of Texas. Ft. Worth.

June 14, 1919.

Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.

Suit by W. Decker against E. L. Race. From an order granting temporary injunction defendant appeals. Temporary writ of injunction vacated, order of the district judge set aside, cause remanded, and petition dismissed.

Walter Prichard, of Ft. Worth, for appellant.

Mercer, Wall & Rouer, of Ft. Worth, for appellee.

CONNER, C. J.

This appeal is from an order of a district judge of Tarrant county, granting a temporary writ of injunction. The petition therefor, omitting its verification and purely formal parts, as presented to the district judge on April 2, 1919, is as follows:

"To the Honorable Judge of Said Court:

Now comes your petitioner, W. Decker, a resident citizen of Tarrant county, state of Texas, plaintiff in the above-entitled cause, complaining of E. L. Race, defendant, who resides in Tarrant county, Tex., and respectfully represents to the court:

"(1) That E. L. Race is justice of the peace of precinct No. 7, Tarrant county, Tex., and as such officer entered up judgment on the docket of said court on the 22d day of March, A. D. 1919, against plaintiff as follows: `R. E. Jobe v. W. E. Decker et al. This day came on to be heard the above styled and numbered cause, and all parties, being present, announced ready for trial, and, a jury being waived, the matters of fact as well as of law were presented to the court, and the court, after having heard the evidence, the argument of counsel, and being advised as to the law, is of the opinion that the law is for the plaintiff. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, R. E. Jobe, for himself and as next friend for Jim Jobe, his minor son, recover of and from the defendants, W. E. Decker and George Walsh, the property sued for, to wit, one brown horse mule, about 15 hands high, 4 years old, sway-backed, now in the possession of George Walsh and for all costs of suit in this behalf expended for which let writ of possession issue. E. L. Race, J. P. No. 7, Tarrant Co. Texas.'

"(2) That it developed from the evidence in the trial of said case that the plaintiff had no interest in the property in litigation, but that the said mule belonged to his minor son, Jim Jobe; that the said Jim Jobe was not a party to the suit, that he did not then nor has he ever asked for affirmative relief from this your petitioner; that the said R. E. Jobe wholly failed to show a cause of action.

"(3) That the aforesaid judgment is wholly void and of no effect; that Jim Jobe could not be given relief by said court in said judgment, as he was not a party to the suit and never asked to be made such, either personally or as next friend, and his rights were never submitted for adjudication.

"(4) That the said judgment is impossible of performance. That the said mule is not in the possession of this defendant nor under the control of this court, and the judgment nowhere states the value of the mule in question.

"(5) That the name of Jim Jobe did not appear in the citation, nor did it ever appear either directly or indirectly as a party to this said suit.

"(6) That this defendant is hereby notified to bring into court all of the official records he has concerning this cause, or else oral testimony shall be offered to...