Tex. & N. O. R'Y Co. v. White

• Decision Date: 23 May 1882
• Docket Number: Case No. 4401.
• Citation: 57 Tex. 129
• Parties: TEXAS & N. O. R'Y CO. v. MARTIN WHITE.
• Court: Texas Supreme Court

57 Tex. 129

TEXAS & N. O. R'Y CO.

v.MARTIN WHITE.

Case No. 4401.

Supreme Court of Texas.

May 23, 1882.

APPEAL from Tom Green. Tried below before the Hon. A. Blacker.

The opinion states the case.

E. P. Hill, for appellant.

John B. Rector, for appellee.--It was legal for the court, on final hearing, to dismiss the bill and render judgment against the principal and its sureties on the injunction bond for the full amount of the judgment enjoined. R. S., art. 2894 (substantially the same as art. 1602, Hart. Dig., and art. 3935, Pasch. Dig.); Miller v. Clements, 54 Tex., 354;Carlin v. Hudson, 12 Tex., 204;Garner v. Smith, 40 Tex., 515;Walker v. McMaster, 48 Tex., 215;Cooke v. Garza, 13 Tex., 447;James v. Reynolds, 2 Tex., 256;Western v. Woods, 1 Tex., 1;Black v. Carothers, 6 Humph. (Tenn.), 87; 2 High on Injunctions, §§ 1643, 1670; Parker v. Slaughter, 24 Iowa, 252;Woods v. Irish, 14 Iowa, 427;Patterson v. Hobbs, 1 Litt. (Ky.), 275; Ward v. Davidson, 2 J. J. Marsh. (Ky.), 443; Suderland v. Crawford, Id., 369; 7 Id., 53; Hunt v. Scobeel, 6 B. Mon., 469;Williamson v. Williamson, 6 B. Mon., 307;Perry v. Kearny, 14 La. Ann., 400; Williams v. Close, 14 La., 737; Edwards v. Kesson, 5 Jones' Eq. (N. C.), 92;Lewis v. Sutliff, 8 Ohio, 60.

STAYTON, ASSOCIATE JUSTICE.

This action was instituted by the appellant to restrain, by injunction, the enforcement of a judgment rendered in favor of the appellee and against the appellant in the district court for Tom Green county. The suit was filed on the 4th of February, 1880. The grounds set out in the petition for injunction, in the view we take of the case, need not be stated.

The injunction was granted by the district judge holding terms in Harris county; the necessary sureties were given, and the writ of injunction issued. Exceptions were filed to the petition, together with motion to dissolve the injunction. On May 20, 1880, the exceptions were heard and sustained by the district court, the injunction dissolved, and a judgment rendered against the appellant and the sureties upon its injunction bond for the sum of $2,326.66, with interest thereon from the 3d day of June, 1879, at the rate of eight per cent. per annum, from which the principal in the injunction bond alone has appealed.

It appears that there had been collected upon the judgment enjoined, prior to the institution of this suit, the sum of $119. There were no pleadings by the appellee setting up any special damage resulting from the suing out of the injunction, nor was there any trial of the cause upon the facts.

The second assignment of error is, “The court erred in rendering judgment against the plaintiff and the sureties on the injunction bond for the amount enjoined.” The judgment seems to have been rendered for the sum due upon the original judgment on the 3d day of June, 1879, and the propriety of rendering that judgment is the only question necessary to be considered.

To a proper determination of this question it becomes necessary to consider the legislation in this state upon the subject, and the decisions made construing the several acts.

The act of 25th January, 1841, provided that “every bond executed for the purpose of obtaining an injunction shall, on the dissolution of the said injunction, have the force and effect of a judgment, and the party or parties whose judgment may have been enjoined may take out execution against all the obligators in the bond.” In the case of Western v. Wood, 1 Tex., 7, it was held that the rendition of a judgment upon the dissolution of an injunction, under that act, against the principal and sureties upon the injunction bond, was not such error as would require a reversal of the judgment; as the bond itself, by the statute, was given the force and effect of a judgment.

The act of May 13, 1846 (Pasch. Dig., 3935, 3936), provided that, “upon the dissolution of an injunction either in whole or in part, where the collection of money has been enjoined, if the court be satisfied that the injunction was obtained for delay, damages thereon shall be assessed by the court at ten per cent. on the amount released by the dissolution of the injunction, exclusive of costs; and in all other cases the damages shall be assessed by a jury sworn for that purpose; if neither party require a jury, the damages may be assessed by the court.”

“The court shall enter an interlocutory judgment, or a decree, according to the circumstances of the case, including the damages assessed as aforesaid, against the principal and sureties in the injunction bond, and may award execution thereon, or enforce such decree, in such manner as may be proper, according to the rules and practice of the court.”

Under the statute above set out, in case of Cook v. De la Garza, 13 Tex., 447, it was held that on the dissolution of an injunction restraining the collection of money, it was proper to render judgment against the principal and sureties on the injunction bond for the principal sum enjoined and for the damages assessed, and such has been the line of decision under that statute.

This action was instituted since the adoption of the Revised Statutes, which, in reference to the judgment to be rendered upon the dissolution of an injunction, provides that, “Upon the dissolution of an injunction, either in whole or part, on final hearing, where the collection of money has been enjoined, if the court be satisfied that the injunction was obtained only for delay, damages thereon may be assessed by the court at ten per cent. on the amount released by the dissolution of the injunction, exclusive of costs.” This is the same as the first part of art. 3935, Pasch. Dig.; and art. 3936, Pasch. Dig., is entirely omitted in the Revised Statutes. It was upon the construction of art. 3936, Pasch. Dig., that the decision in Cook v. De la Garza and the succeeding decisions were made; and the inquiry now arises as to whether, under the present statute, such a judgment can be rendered against the principal and his sureties, or against the principal alone, upon the mere dissolution of an injunction by which the collection of money has been restrained.

The judgments rendered under the former statute were statutory judgments, and not judgments rendered by the court under its general equity powers; and when we consider the change made in the statute, we are forced to the conclusion that a judgment cannot now be rendered against the principal and sureties, nor against the principal alone, for the principal debt enjoined, upon the mere dissolution of an injunction; for there is now no statutory authorization to the courts so to do, and no summary judgment can be rendered on a bond without such authorization. Fall v. Ratliff, 10 Tex., 292. The award of a temporary injunction to stay proceedings to collect a judgment at law does not satisfy or discharge the judgment enjoined, and if it be not made perpetual upon final hearing, the holder of the judgment can proceed to collect the same, and the bond...