Zickefoose v. Richardson

• Decision Date: 29 November 1920
• Docket Number: (No. 570.)
• Citation: 227 S.W. 532
• Parties: ZICKEFOOSE et al. v. RICHARDSON.
• Court: Texas Court of Appeals

227 S.W. 532

ZICKEFOOSE et al. v. RICHARDSON.

(No. 570.)

Court of Civil Appeals of Texas. Beaumont.

November 29, 1920.

Rehearing Denied January 5, 1921.

Appeal from District Court, Liberty County; J. L. Manry, Judge.

Action by W. J. Zickefoose and others against J. F. Richardson. Judgment for defendant, and plaintiffs appeal. Reversed, with directions.

F. M. Sheffield and Jno. M. Conley, both of Beaumont, for appellants.

E. B. Pickett, Jr., of Liberty, for appellee.

WALKER, J.

Cause No. 203 on the docket of justice court No. 4, Liberty county, styled W. J. Zickefoose et al. v. J. F. Richardson, involved the title and possession of a pig of the alleged value of $12. On the 6th day of January, 1919, the plaintiff in that suit recovered judgment by default against the defendant for the title and possession of the pig. Within the time provided by law (articles 2374-2377, Vernon's Sayles' Civil Statutes 1914), the defendant filed with the justice of peace, who tried the case, his motion for a new trial. This was duly presented and overruled. Afterwards, on the 13th day of January, 1919, the defendant presented to the said justice of peace, with the request that it be filed, what he styled "a motion to set aside" the default judgment, which the justice of peace refused to file, and returned to defendant. Afterwards, on petition of said J. F. Richardson, Hon. J. L. Manry, one of the district judges of Liberty county, granted a temporary writ of injunction, restraining the execution of the Justice court judgment. When this cause was tried in the District Court on its merits, the injunction was perpetuated, and judgment was rendered for J. F. Richardson for the title and possession of the pig. From this judgment Zickefoose has prosecuted his appeal to this court.

The trial of this cause concluded all fact issues in favor of appellee. But we have concluded that the injunction was improperly granted, because appellee had not exhausted his remedy at law. Where an appeal does not lie from a judgment by default in justice court, the losing party is not entitled to an injunction restraining the execution of the judgment, unless he has exhausted his legal remedy provided by statute for securing a new trial. Articles 2374-2377, Revised Civil Statutes; Sherman Steam Laundry v. Carter, 24 Tex. Civ. App. 533, 60 S. W. 328. He must show, not only that he was not in default in permitting the case to go to judgment in his absence, but also that he has a meritorious defense to the cause of action alleged against him. Holliday v. Holliday, 72 Tex. 581, 10 S. W. 690; Drummond v. Lewis, 157 S. W. 266; Railway Co. v. Shield, 56 Tex. Civ. App. 7, 120 S. W. 222.

As controverting the proposition asserted by us, appellee has cited Railway Co. v. King, 80 Tex. 683, 16 S. W. 641; Medlin v. Commonwealth, etc., Co., 180 S. W. 899; Insurance Co. v. Arant, 40 S. W. 853.

In the King Case, it appears from the opinion written by Judge Collard, that defendant had been granted, in the Justice Court, one new trial, and "that a second new trial was not allowed by law in the justice court, and, the judgment being for only $20 and costs, no appeal could be had." It would follow from this statement that, if the justice of peace had no authority to grant a new trial, no duty rested upon the complaining party to file one.

In the Medlin Case, the statement is made in the syllabus:

"The court adjourned without any opportunity being offered to set aside the judgment at that term."

In the Arant Case, the motion for a new trial was duly filed, and all that case decided was, quoting from the syllabus:

(1) "An agreement between attorneys to pass a case over appearance day, and until a certain date, bars the plaintiff from taking judgment until the time stated terminates." (2) "Such an agreement extends the time of filing the answer until the time agreed upon has expired."

These cases do not sustain appellee's position.

In the motion for new trial, filed in the justice court, appellee alleged a good and sufficient excuse for his absence, and for the absence of his attorney, when the default judgment was taken against him on the 6th day of January, 1919, and, as stated by us, the trial of the case concluded these issues in his favor. But he did not allege a meritorious defense to plaintiff's cause of action, either in the motion that was filed and acted upon by the court, or in the motion that the court refused to file. This omission on his part was fatal to his relief by injunction through the district court. In order to constitute a basis for equitable relief, the motion for new trial must have been legally sufficient to entitle him to the relief prayed for.

Railway Co. v. Shield, supra, in which a writ of error was denied by the Supreme Court, is a case directly in point. Speaking for the court, Mr. Justice Rice said:

"The judgment, as we have seen, was not void, and, in order to obtain equitable relief in such cases as the present, it must appear that the party had a good defense to the cause of action asserted against him, in addition to the reasons for his failure to present it at the proper time. G. C. & S. F. Ry. Co. v. King, 80 Tex. 681, 16 S. W. 641; Rev. St. 1895, arts. 1651, 1652; Sherman Steam Laundry v. Carter, 24 Tex. Civ. App. 533, 60 S. W. 328; Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S. W. 303. Apart from this, appellant had failed to exhaust its legal remedy in this: Its motion to set aside the judgment was not sworn to, as required by statute (article 1651, Sayles' Ann. Civ. St. 1897), and it is always necessary to exhaust all legal remedies before an injunction will be granted. Frazier v. Coleman (Tex. Civ. App.) 111 S. W. 662. For aught that appears to the contrary, the court may have overruled appellants' motion in the justice court to set aside the judgment because it was not shown that it had a good defense to said cause of action, not its...