Hart v. Mills , 38 Tex. 517 ( 1873 )

Ogden, P. J.

This is an appeal from a judgment of the District Court dissolving an injunction and dismissing the bill for the same. The injunction was sought in 1871, to stay the issuance of an execution upon a judgment rendered in that court in 1866, pending the proceedings on a bill for review, commenced in August, 1871. We think the bill filed in that case should have been made an exhibit in the petition for an injunction, that the court or judge applied to might have had an opportunity of determining the • applicability of the two causes, and of determining the identity of complaint, and the merits of the first bill, to entitle a party to this extraordinary remedy.

It may be true that a complete denial, under oath, of all the equities in a bill for an injunction does not entitle a party to a dissolution of an injunction as a matter of law, but it certainly does place the whole matter within the sound discretion of the court, to dissolve the injunction or not, as the equities of the case may require; and the exercise of that discretion will not be revised by this court unless a manifest error has been committed.

This is a novel case. A judgment was rendered in 1866, and this injunction was sued out as an independent action to stay execution, in 1871, during the pendency of a bill for review. We are not aware of any authority in this State for any such proceedings.

The grounds set out for the injunction are fraud and intimidation, and the illegality of the judgment sought to be restrained. The allegations of fraud, threats and intimidations, we think,'are not only fully denied by the answer, but are proven not to be true by the affidavits of disinterested witnesses, and therefore cannot properly be claimed to support the maintenance of the injunction. There may have been irregularities on the trial of the original suit, in 1866, but we have discovered nothing in this record to convince us that the judgment is void, and therefore the proper subject for an injunction, after such a lapse of time. The service upon the defendant in that case may have been defective, or there may have been no service at all; yet the attorney of the defendant swears that he made an appearance in that suit for the defendant ; that his action “in the case, from beginning to end, was the result of my own judgment and reflection, under the instruction of my client’ and therefore that appearance' cured all defects in the service.

The defects in the original petition in the suit of 1866 are not subjects for our revision or criticism, as that is not before us; nor does the simple fact that the deputy sheriff acted as one of the jury in that case necessarily render that judgment void. We think the allegations and the equities of the bill for an injunction fully answered by the defendant, under oath, and the affidavits of other parties, and that the court did not err in dissolving the injunction.

The judgment is therefore affirmed.

Affirmed.