Wilson v. Smith

• Decision Date: 18 November 1897
• Citation: 43 S.W. 1086
• Court: Texas Court of Appeals
• Parties: WILSON v. SMITH et al.<SMALL><SUP>1</SUP></SMALL>

43 S.W. 1086

WILSON v. SMITH et al.¹

Court of Civil Appeals of Texas.

November 18, 1897.

Appeal from district court, Houston county; J. R. Burnett, Judge.

Action by J. E. Smith and others against Hamp Wilson to set aside a judgment. Judgment for plaintiffs, from which defendant appeals. Reversed.

Nunn, Nunn & Nunn, for appellant. Adams & Adams, for appellees.

PLEASANTS, J.

The appellant, H. Wilson, was engaged in 1892, in the town of Crockett, in the warehouse receiving and forwarding business. The warehouse was the property of his sisters-in law, the Misses Breitling, and they allowed appellant one-third of the profits for conducting the business. Appellee J. E. Smith was the public weigher of said town, and he sought and obtained in 1892 an injunction enjoining and restraining appellant from weighing cotton, unless requested in writing, by the owners of the cotton, to do so. Appellant answered by exceptions, and pleaded damages in reconvention against plaintiff and his sureties upon the injunction bond. Upon the final hearing of the cause the exceptions were sustained, and the injunction dissolved. At the fall term, 1894, the appellee Smith, without the knowledge of appellant, dismissed the suit, including appellant's plea in reconvention, but, at same term of court, appellant obtained an order of the court reinstating this cause upon the docket; and said cause was continued from time to time until April 10, 1896, when, both plaintiff and defendant having answered "Ready," by their counsel, the cause was tried by the judge presiding, without the intervention of a jury, and judgment rendered for $300 damages for the plaintiff (the appellant here) against the appellee Smith and his co-appellees, who, with one S. D. Thompson, were the sureties of Smith upon his injunction bond. The surety S. D. Thompson was dead at the time of the judgment, but there does not appear in the record any suggestion of his death, or any order dismissing the suit as to him. Afterwards execution was duly issued upon this judgment, and on the 1st of June, 1896, the appellees filed suit, praying that the execution be restrained, and that said judgment be vacated, and that they be allowed to appear and defend the suit of the said Wilson for damages against them. And, for cause for granting the writ and reopening said cause, their petition alleges that it was generally understood and agreed that Judge Brashear, who was presiding by exchange with the judge for that district, would try only such causes as the judge for the district was disqualified from trying, and that said judge was not disqualified from trying the suit in which the judgment complained of was rendered; that the plaintiff in said suit, the said Wilson, called up the case, and obtained the judgment, in the absence of complainants, without the knowledge of any of them, and that they were not represented by counsel; that they had no expectation that the cause would be tried by Judge Brashear; that no judgment was rendered against S. D. Thompson, who was co-surety on the injunction bond and co-defendant in said suit, and no disposition was made of him prior to the trial of the cause, and that said judgment is therefore not a final judgment, and that complainants cannot appeal therefrom; that complainants, the sureties of the said Smith, were not cited to appear and answer the motion of the plaintiff, Wilson, to reinstate his suit in reconvention; that complainants were notified that said suit had been dismissed, and had no knowledge of its reinstatement upon the docket of the court; that the injunction bond on which they were sureties was payable to H. Wilson, and not to Carl Wilson, against whom the writ of injunction was issued, and there was nothing in the pleadings averring or showing that Carl Wilson and H. Wilson were one and the same man; that said H. Wilson had no interest in the business which he was conducting; that he was simply an agent for others; that, in truth and in fact, neither Wilson nor the business was injured by the suing out of said injunction against him by their principal, the said Smith; that Wilson had no claim, legal nor equitable, against complainants, and that they had a complete and meritorious defense to said suit; that said Wilson is insolvent; and that complainants will sustain irreparable injury unless the execution of said judgment be enjoined, and the same be reopened, and complainants be allowed to appear and defend the suit. To their petition, complainants filed exhibits as follows: First. Original injunction. Second. Original injunction bond. Third. Execution on judgment rendered April 10, 1896, giving judgment against them for $300. Fourth. Petition for original injunction. Fifth. Answer of defendant, Wilson. Sixth. Affidavit of complainant Smith that he was sick at the time of trial, and when judgment was rendered on plea of reconvention, and that he thought the case was off the docket. Seventh. Affidavit of W. A. Stewart, attorney who represented plaintiffs in original suit, to the effect that he was unwell when cause was called for trial; that he was present and participated in trial of said cause, and represented the complainants; that the judge held up the cause after argument, and that he was taken sick, or became worse, and was unable to appear in court, afterwards, during the time Judge Brashear presided, and was unable to look after the case, and did not know what had become of it. The defendant, Wilson, filed exceptions and answers as follows: "(1) No reason shown why Judge Brashear should not or could not try the case; (2) allegation that petition was against Carl Wilson, and injunction against Hamp Wilson, was insufficient; (3) allegation that S. D. Thompson was a surety on said bond, and no judgment against him, is sufficient; (4) allegation that complainants did not have citation or notice is insufficient; (5) allegation that the attorney was sick, and that the judge, after hearing the cause, took same under consideration, and rendered judgment thereafter, is not material; (6) the allegations as to sustaining exceptions to plaintiffs' petition in original suit, and the dismissal and reinstatement of the cause on the docket, are insufficient; (7) allegation that Wilson was only an agent weighing cotton, and had no personal interest, is insufficient." And defendant answered to the effect that while suit No. 3,737 (original suit) was against Carl Wilson, as stated in petition, the complainant therein on December 20th filed a supplemental petition alleging that his name was Hamp Wilson, and sued out a writ against Hamp Wilson, restraining him, etc.; "that on March 12, 1894, this defendant filed his plea in reconvention, claiming damages to the amount of $1,000 against the said Smith and his sureties; that defendant urged trial repeatedly until spring term, 1896, when plaintiffs' attorney and defendant's attorney were in court, and announced `Ready for trial,' before Judge Brashear, and said trial regularly proceeded, resulting in judgment for this defendant for $300; that S. D. Thompson, one of the sureties on the original injunction bond, had died prior to trial of said cause, and no judgment was taken against him, and no injury resulted to complainants therefrom, but, if it is deemed necessary that there be an order dismissing as to Thompson, then his death is suggested, and an order asked nunc pro tunc; that, if Smith and his attorney were sick at the time of trial, such fact was not brought to the attention of the court; that it is not shown that a different result would or could have been reached, had trial occurred under other circumstances; and that the grounds of injunction are frivolous, and that injunction is only for delay." Upon filing of the foregoing exceptions and answer by the defendant, the complainants filed a trial amendment, in which, in addition to the allegations in original petition, they aver that complainant Smith was sick in bed at the time the judgment of April 10, 1896, was rendered, and was unable to attend court; that he had been informed by his counsel, Stewart, that no case would be tried by Judge Brashear, except such as Judge Burnett, the judge for the district, was disqualified to try; that Smith was an important witness for the defense of the suit, and would have attended the trial and testified, had his condition permitted him, if he had known or believed that the case would be tried by Judge Brashear; that he told his attorney, Stewart, that he could prove important facts, but did not inform him what the facts were; that neither Smith nor other complainants had any knowledge of the trial, or the judgment...