Ellis v. Harrison , 24 Tex. Civ. App. 13 ( 1900 )

Appellees, John C. Harrison and W.B. Harrison, instituted suit in the District Court of Tarrant County against appellant, E.A. Ellis, in July, 1898, in which suit they sought to recover judgment against Ellis for the amount of a note for the sum of $22,000, besides interest and attorney's fees, for the amount of a draft for the sum of $5000, and for the value of thirty-seven bonds of the San Antonio Street Car Company, of the denomination of 1000 each. They alleged in their petition that Ellis had executed said note and said draft and the contract for the delivery of said bonds to plaintiffs, by which said contract he also guaranteed the interest on said bonds for three years. They alleged in their petition that the consideration which moved Ellis to execute and deliver to them said note and said draft and said contract for the delivery of said street car bonds and the guaranty of interest on the same, was the sale and delivery by them to said Ellis of 500 shares of the capital stock of the Standard Light and Power Company, of Fort Worth, Texas.

Ellis answered by denying that he had ever completed the purchase of said Standard Light and Power Company's stock, and denied that he had ever delivered said note and said draft and said contract as obligations against himself. He set up in his answer that said papers had been executed by him, but had not been delivered, as obligations, but had only been placed in the State National Bank of Fort Worth in escrow, to be delivered after certain alleged terms and conditions in said transaction were completed. Plaintiffs in that suit replied to defendant's answer that said contract was completed on the 30th of June, 1898, and that said note and draft and said contract of sale of the San Antonio street car bonds had been delivered to them as binding obligations against defendant.

A trial was had in the case in the District Court of Tarrant County in January, 1899, and judgment was rendered against Ellis in favor of plaintiffs for the sum of about $44,000, being the amount of said note, principal, interest, and attorney's fees, the amount of said draft and interest, and the value, as found by the court, of the San Antonio street car bonds. Ellis filed his motion for new trial in the District Court, and upon the overruling of the same he gave notice of appeal to the Court of Civil Appeals of the Second Supreme Judicial District of Texas, at Fort Worth, and in due time perfected his appeal by filing a supersedeas appeal bond with his coappellants in this case as sureties on said bond. A trial of the cause was had in the Court of Civil Appeals in the month of June, 1899, and the judgment of the District Court in favor of plaintiffs for said money was affirmed, and judgment rendered against the principal and sureties on the appeal bond. An application for rehearing on the part of Ellis was refused by said court, and thereupon a petition for writ of error was filed, which, upon consideration by the Supreme Court, was denied.

Thereafter, in due time, the mandate was issued by the Court of Civil Appeals and filed in the District Court of Tarrant County, Texas, and upon that mandate an execution was issued, directed to the sheriff of Tarrant County. This execution was duly returned by the sheriff of Tarrant County, with his return thereon that there was no property of defendants found in his county. Thereupon alias execution was sued out, directed to the sheriff or any constable of Fort Bend County, and was, by the constable of precinct No. 1 of that county, levied upon the interest of the defendants in execution on a body of land in Fort Bend County. Plaintiffs in that execution had, prior to the issuance of the same, filed for record, and caused to be recorded in the office of the county clerk of Fort Bend County, abstracts of said judgments. After the levy of said execution upon the land in Fort Bend County, appellants applied to the Hon. Wells Thompson, judge of the District Court of Fort Bend County, for a writ of injunction enjoining said judgment and execution and the sale of said property, upon the grounds substantially as alleged in appellants' amended original petition as hereinafter stated.

A temporary writ of injunction, returnable to the District Court of Fort Bend County, was granted upon said application, and said petition was filed in the District Court of Fort Bend County. On the 13th of February, 1900, upon hearing of the motion to dissolve the injunction in chambers at Hempstead, Texas, the judge who granted the injunction dissolved the same for the want of equities in the bill, and for the want of jurisdiction in his court over said cause. Said judgment of dissolution was duly entered upon the minutes of the District Court of Fort Bend County, and on the 16th of March, 1900, the District Court of Fort Bend County being in session, a judgment was rendered dismissing the petition and rendering judgment that plaintiffs take nothing by their suit. From that judgment appellants have brought up the case to this court.

For a full statement of the issues in the District Court of Tarrant County, and in the Court of Civil Appeals, see the case of Ellis v. Harrison, 52 Southwestern Reporter, 581.

Appellants' first amended original petition, to which the trial court sustained a general demurrer, alleges that the judgment recovered by the Harrisons in the District Court of Tarrant County, and which is alleged to have been merged into the judgment of the Court of Civil Appeals, was obtained by fraud and perjury; that the record of said judgment in the judgment records of Fort Bend County casts a cloud upon the title to appellants' land in said county; that the interest of appellants in the land levied upon was worth $300,000, and the interest of Emmet Ellis in said land was worth $75,000, and that the levy sought to be enjoined was excessive; and further alleges that Mrs. Amanda Ellis and Emmett Ellis are each entitled to a homestead out of their several interests in said land. The prayer of the petition is for an injunction restraining the sale of the land; for a removal of the cloud upon the title; for the recovery of damages for the excessive levy, as against the Harrisons and the constable, Bass, who are charged with jointly conspiring to make such levy and injure appellants; "for a decree setting aside the judgment of the Court of Civil Appeals affirming and merging into the judgment of the District Court of Tarrant County of January 6, 1899;" and for judgment against the said Harrisons for any amount found to be due by reason of the fraud and deceitful representations made in the contract upon which said suit in the District Court of Tarrant County was brought, should it finally be determined that said contract should be enforced, and for injunction restraining the further issuance or levy of execution or sale under said judgment, because of its invalidity by reason of the fraud, false testimony and fraudulent representations alleged in the petition. There is a further prayer to restrain said sale because of the homestead interest of Mrs. Ellis and Emmett Ellis in said land. The petition sets out at great length the proceedings in the case in the District Court of Tarrant County, and attaches as exhibits copies of the pleadings and the contract upon which said suit was brought, and alleges in detail the circumstances under which said contract was made, and charges appellees with fraud, deceit, and perjury in the procurement of said contract and in their testimony upon the trial of said cause.

The first assignment of error challenges the judgment of the trial court dismissing this suit for want of jurisdiction, appellants' contention being that the District Court of Fort Bend County had jurisdiction to hear and determine this cause: First, because the judgment of the District Court of Tarrant County has been merged into the judgment of the Court of Civil Appeals, and is no longer in existence, and this suit is to set aside a judgment of the Court of Civil Appeals because the same was obtained by fraud and perjury in the District Court. Second, the Court of Civil Appeals having no original jurisdiction to determine whether said judgment was so obtained, and such jurisdiction being in the District Court alone, the suit must be brought in the District Court of Fort Bend County, because it is a suit to remove cloud from the title to real estate, and must be brought in the county in which the land is situated. Third, because this is a suit to enjoin the sale of a homestead and is properly brought in the county where the homestead is located. Fourth, because this is an action to recover damages for an excessive levy, and Bass, one of the alleged joint tort feasors, resides in the county in which the suit was brought. Fifth, because Mrs. Amanda Ellis and C.G. Ellis are strangers to the judgment of the District Court of Tarrant County, and have the right to enjoin the execution of said judgment in any court otherwise having jurisdiction.

In support of these propositions appellants' counsel presents an argument showing great learning, ability, and ingenuity, and so plausible that upon first blush it may appear to be sound, but when tested by well established principles of law which are founded in the highest reason and upon the soundest public policy, is demonstrated to be false. It is manifest from a reading of the petition that the main object of this suit is to set aside the judgment of the District Court of Tarrant County, or, in other words, to obtain a new trial of said suit, and the allegations as to the cloud upon the title of appellants' land, the excessive levy and the homestead claims of Mrs. Ellis are injected into the petition upon the theory that if any one of said allegations is sufficient to give jurisdiction to the District Court of Fort Bend County, that court could and would assume jurisdiction of the whole case. We think the general demurrer was properly sustained to the petition in so far as this suit is sought to be maintained as an action to remove cloud from title, or to recover damages for an excessive levy, or to restrain the sale of a homestead, because the petition does not allege facts sufficient to constitute any of said causes of action, but on the contrary shows upon its face that no such cause of action exists in favor of appellants against appellees.

It appears from the petition that the only cloud upon the title to appellants' land which is sought to be removed by this suit is the record of the judgment of the Court of Civil Appeals reforming and affirming the judgment of the District Court of Tarrant County, and if the District Court of Fort Bend County has no jurisdiction to try a suit brought directly to set aside such judgment, it clearly could not set aside the judgment in a collateral attack made upon it in a suit to remove cloud from title. Were the rule otherwise, we would have the anomalous condition that one district court could enjoin and set aside the judgment of another district court when an abstract of the judgment sought to be enjoined was filed and because a lien upon land situated in the county in which the suit for injunction was brought, but when no abstract was filed, such jurisdiction would not attach either to restrain a levy upon or sale of the land under an execution issued upon said judgment, or to set aside said judgment.

The allegations as to an excessive levy and the failure to first levy upon personal property show no cause of action for damages against either the appellees Harrison or the constable, Bass. The levy being upon land, appellants could protect themselves against an excessive levy by having the land subdivided and sold in small tracts as provided by the statute (articles 2306, 2307, Revised Statutes, 1895); and without offering or tendering to the officer personal property sufficient to satisfy the judgment, they can not complain of the levy upon their land. Ross v. Lester, 14 Tex. 469; Anderson v. Oldham, 82 Tex. 228; Railway v. Wright, 88 Tex. 346. It has been expressly held that the mere levy of an execution on land is not a trespass for which an action will lie, and no facts are alleged in the petition in this case which show any damage to appellants by reason of said levy. Mikeska v. Blum, 63 Tex. 44; Trawick v. Martin, 79 Tex. 460; Girard v. Moore,80 Tex. 675.

In so far as the allegations as to the homestead interests of Mrs. Ellis and Emmett Ellis are concerned, the petition shows that appellants were tenants in common of said land with one Leigh Ellis, each owning an undivided one-fourth of the entire body of land levied upon, and fails to describe or in any way designate what part of said land was claimed as homestead by either of said appellants. It was clearly impossible for the officer to designate any certain portions of said land as the homesteads of Mrs. Ellis and Emmett Ellis, because neither of said appellants owned any part of said land in severalty, and appellants not offering to amend their petition in this regard, the suit was properly dismissed.

The question as to the jurisdiction of one district court to entertain a suit to set aside or enjoin the execution of the judgment of another district court was recently passed upon by this court in the case of Adoue v. Wettermark, 22 Texas Civil Appeals, 545, and we adhere to the views expressed in our opinion in that case.

It may be that for some purposes and in a certain sense the judgment of the District Court of Tarrant County was, as is contended by appellants, merged into the judgment of the Court of Civil Appeals, but the District Court of Tarrant County is the court in which said judgment was originally rendered and to which an injunction restraining the execution of said judgment is returnable. Rev. Stats., arts. 2996, 1194 (17). We think, to use the language of appellees' brief, "that the statutes of our State above cited, providing that suits to enjoin the execution of a judgment must be brought in the county in which such judgment was rendered, and providing that writs of injunction granted to stay execution on a judgment shall be returnable to and tried in the court where such judgment was rendered, were clearly intended to provide a forum for all suits assailing judgments. It was well understood by the Legislature that suits to set aside judgments and suits in equity to restrain the execution of judgments, and suits in the nature of actions for new trials, could not be brought in the courts of last resort. Having this principle clearly in view, the Legislature could have meant by these statutes but one thing, and that is that the only court in which a suit can be brought, the purpose of which is to set aside, reopen or enjoin the execution of a judgment, is the court in which the judgment was originally rendered. If any exception had been intended as to judgments rendered by the courts of last resort, it is entirely reasonable to suppose that provision would have been made therefor. And it can not be doubted that all such suits must, under the statutes cited, be brought in the court in which the judgment was originally rendered, and having equitable jurisdiction over such cases. Such is the rule at common law, and its purpose is well understood to be to prevent conflicts and confusion between the courts."

Without expressing any opinion as to the sufficiency of the allegations in the petition to entitle appellants to have the judgment sought to be enjoined set aside by a suit in the court in which said judgment was originally rendered, we are of opinion that the District Court of Fort Bend County was without jurisdiction to try this case, and the suit was properly dismissed. This suit is in effect an application for a new trial of the cause originally tried in the District Court of Tarrant County, in which county the defendants in the original suit reside. It can not be that the right of a defendant to be sued in the county of his residence, which has ever been jealously guarded by our laws, is a substantial and enforcible right only in original proceedings, and can be utterly disregarded in a suit for new trials. If the law is as contended by appellants, then a judgment against a defendant who is able to continuously employ counsel and institute suits could never be enforced, for if proceedings of this kind can be resorted to once they may be any number of times. Every consideration of sound public policy demands that there be an end of litigation after a party has had his day in court, and to permit one district court to set aside and to interfere with the judgment of another would cause endless confusion and greatly retard, if not wholly prevent, the due and orderly administration of justice.

There is no merit in appellants' contention that Mrs. Ellis and C.G. Ellis are strangers to the judgment of the District Court of Tarrant County, and therefore they can bring this suit in Fort Bend County. They are not strangers to said judgment. True, the judgment was not originally against them, but by the execution of the supersedeas bond they became parties to that proceeding, and are in no sense strangers to the record in that suit.

Appellants' final contention is that if the District Court of Fort Bend County is without jurisdiction to hear and determine the issues in this case, it was also without jurisdiction to hear the motion to dissolve the injunction heretofore issued by the judge of said court, and the judgment dissolving said injunction is therefore void, and said injunction is still in existence. We hardly think appellants' counsel would seriously insist on the soundness of this proposition, as we can not conceive of there being an existing injunction with no suit pending, nor petition nor judgment in existence upon which such injunction was issued or is based.

We find no error in the judgment of the court below, and it is in all things affirmed.

Affirmed.