Smith v. State , 26 Tex. Ct. App. 49 ( 1888 )

White, Presiding Judge.

Though the State appears as defendant in error in this case, she is not really a party to or in any manner appears to be interested in the litigation. The facts as they appear of record are as follows:

On the second day of April, 1885, in the county court of Wise county, Texas, in a certain cause wherein the State of Texas was plaintiff and R. H. Smith was defendant, a judgment was rendered assessing a fine against said R. H. Smith at seven hundred and seven dollars, besides costs of suit. On June 13, 1885, the Governor of the State of Texas remitted all of said fine save and except two hundred dollars, which amount, together with all costs due, said Smith paid. R. E. Carswell, county attorney of Wise county, claiming that he was entitled to ten per cent commission on the part.of said fine remitted by the Governor, procured to be. issued by the clerk of .the county court of Wise county an execution on said judgment to collect said commissions, which the said county attorney claimed amounted to fifty dollars and seventy-three cents. R. H. Smith, on the second day of January, 1886, presented to the county judge of Wise county, Texas, his petition praying for a writ of injunction to restrain the collection of said amount claimed to he due by said county attorney, which injunction was granted. •On the fifth day of February, 1886, the case was heard by the ■county judge on motion of defendant in error to dismiss the petition and dissolve the injunction, which was sustained by the court, and from which action of the court this writ of error is prosecuted.

Opinion delivered June 27, 1888.

If the injunction was dissolved because it was an action to restrain the State in the collection of a judgment, then we say the State was not interested in the subject matter, and the suit was really one to restrain the county attorney and sheriff, and they alone were and should have been made parties defendant. Enough is alleged in the petition to show a cause of action aginst them, without interpleading the State, and they both appear to have been parties cited to answer.

Injunction is a proper remedy to prevent proceedings on a satisfied judgment. (Rev. Stat., art. 2874; Bowen v. Clark, 46 Ind., 405; 3 Waite’s Act. and Def., 734.)

As to the right of the county attorney to commissions upon that part or portion of the judgment which had been remitted by the Governor, the case of The State v. Dyches, 28 Texas, 536, is directly in point. In that case it was held that commissions on adjudged forfeitures became due to the attorneys representing the State, and only when the money is collected, and they are to be taken out of the money collected. If the money be not collected, no rigfit to such commissions accrue to the attorneys, and this notwithstanding that their failure to collect it is attributable solely to the action of the Governor remitting the forfeiture. (See Code Orim. Proc., arts. 981, 982; Const., art. 4, sec. 11.) We are of opinion the injunction petition stated a good and sufficient cause of action against the county attorney and sheriff, who' were the real and only necessary parties under the circumstances alleged, and that it was error in the court to dissolve the injunction.

The judgment is reversed and the cause remanded.

Reversed and remanded.