R. R. Stolley Corp. of Austin v. Quebedeaux

When the decision was handed down in the above causes, the writer noted his dissent, which was predicated upon the following propositions:

1. The cross-action of appellee, in so far as it sought an affirmative decree validating the judgment, could not be maintained as an independent suit; and therefore plaintiff's nonsuit eliminated this issue, thus leaving the cross-action upon the injunction bond the only matter in controversy.

2. The liability of the sureties upon the injunction bond was only for the penalty prescribed by statute and such special damages as might be pleaded and proved resulting from the issuance of the injunction, and not the amount of the judgment which was enjoined.

Upon a more careful inspection of the record, it is the view of the writer that the judgments rendered in the two cases are supported upon the following grounds:

1. It affirmatively appears from the record that the plaintiff's motion for dismissal and nonsuit was made conditional upon the dismissal of defendant's entire cross-action, the order of the trial court reciting in that regard: "It further appearing to the court from said motions and from the statement of plaintiff's counsel to the court that plaintiff is seeking and asking the dismissal of the entire cause, that is, defendant's reconvention for affirmative relief as well as plaintiff's cause of action, and that said plaintiff was not asking by said motions merely the dismissal of its own cause of action and that in case the court did not dismiss the entire cause that plaintiff did not want its own cause of action dismissed."

That portion of appellee's cross-action which sought penalty and damages for wrongful issuance of the injunction was clearly a matter which would sustain an action on appellee's part independently of appellant's suit; and since the request for dismissal and nonsuit was expressly conditioned upon the dismissal of the entire cross-action, coupled with the statement that should the court not dismiss the entire cause, plaintiff did not want its own cause of action dismissed, the trial court properly overruled the motion for dismissal and nonsuit.

Since the cause was tried upon the merits of the original cause of action, and the judgment was in favor of the defendant, the plaintiff has had his day in court upon the merits of the controversy involved in the original suit; and the effect of the judgment is to confirm the judgment therein.

2. It appears from the record that the sureties have not appealed from the judgment, but have executed as sureties the supersedeas appeal bonds upon which the plaintiff has brought the two cases to this court for review. They have therefore upon these supersedeas bonds become personally bound for the judgment against plaintiff, regardless of the extent of their liability upon the injunction bond.

It may not be amiss to amplify the views supporting the announced dissent.

The right of a defendant to maintain a cross-action for affirmative relief after plaintiff has seasonably applied for a nonsuit is dependent upon whether the affirmative relief sought would sustain an independent action on defendant's part. Hoodless v. Winter, 80 Tex. 639, 16 S.W. 427.

Except where a judgment is dormant, or where it is necessary to protect some right of the judgment plaintiff, the courts in this state will not entertain an action upon a judgment. Stevens v. Stone, 94 Tex. 415,60 S.W. 959, 86 Am. St. Rep. 861; 26 Tex.Jur. p. 480.

Therefore, if the only affirmative relief sought by defendant had been the establishment or adjudication of the validity of the judgment, plaintiff would have been entitled to a nonsuit as a matter of law. Likewise, if plaintiff's application for a nonsuit had been unconditional, he would have been entitled thereto, subject to the right of defendant to prosecute that portion of his cross-action only which could form the basis of an independent action, namely, the suit for penalty and damages upon the injunction bond.

In the case of Halbrook v. Quinn (Tex.Civ.App.) 286 S.W. 954, the Amarillo Court held that the remedies by appeal and by independent suit to set aside a judgment were alternative, requiring an election. The case arose upon an original application for writ of prohibition to prohibit the trial court from proceeding in an independent suit in equity to set aside a judgment which had previously been affirmed by that court.

The question involved was certified to the Supreme Court, but the certificate was dismissed upon the holding that the Supreme Court was without jurisdiction to review a judgment or order of the Court of Civil Appeals in an original proceeding in that court, and consequently was without jurisdiction to review such ruling or decision upon certificate. Quinn v. Halbrook, 115 Tex. 513, 285 S.W. 1079. The holding of the Court of Civil Appeals is predicated upon that of the Supreme Court in Campbell v. Wiggins, 85 Tex. 451, 22 S.W. 5, wherein it was held that where a party has applied for and obtained a certificate of dissent, and the Supreme Court has determined the question certified adversely to him, he is thereafter precluded from review by writ of error of other questions involved in the case that were not involved in the dissent. The holding of the Court of Civil Appeals was later followed by the same court in Davis v. Cox, 4 S.W.2d 1008, and by the Court of Criminal Appeals in King v. State, 112 Tex. Crim. 425, 16 S.W.2d 1072.

It is the view of the writer that the remedy by appeal to review a judgment, and the remedy by plenary suit in equity to set a judgment aside, are not alternative remedies. Questions which may be reviewed, or which might have been presented for review by appeal, cannot furnish the basis of a plenary suit in equity to set the judgment aside. Nor can issues which warrant the setting aside of a judgment in a plenary suit in equity be asserted on appeal; consequently the two remedies do not call for an election. To require the plaintiff to elect would be to deny a right for which the remedy chosen afforded no relief.

The decision in Winters Mut. Aid Ass'n Circle No. 2 v. Reddin (Tex.Com.App.) 49 S.W.2d 1095, 1096, reviewing the authorities upon the subject, supports this conclusion. We quote from the opinion: "An appeal by writ of error is to review the errors committed by the trial court and the Court of Civil Appeals. A suit in equity to set aside the judgment goes to the very foundation of the judgment, and does not involve a revision of the judgment for errors committed. The functions of such a suit are entirely distinct from the functions of an appeal from the judgment assailed. * * * Of course litigants will not be permitted to review in the suit in equity to vacate the original judgment any matters involved in the appeal, or that could have been brought up by appeal in the original proceedings."

If by the quotation in the majority opinion from 15 Tex.Jur. p. 246, it was intended to announce the rule that where the affirmative relief sought by defendant involves the same subject-matter as that sought by the plaintiff, the defendant would have the right to prosecute such cross-action in the face of plaintiff's nonsuit, regardless of whether the subject-matter of the cross-action was purely defensive and would not support an independent action by defendant against the plaintiff, the rule is in direct conflict with the uniform holdings in this state. Such rule would permit defendant in any case to defeat the plaintiff's right of control over his case, and to compel an adjudication thereof by a cross-plea setting up the invalidity of plaintiff's cause of action and asking that it be so decreed, and that defendant be exempt from further litigation in the matter. The case cited in support of the text, as well as all of the cases cited in the majority opinion in which cross-actions have been held maintainable after nonsuit, are cases in which the affirmative relief sought would support an independent recovery on defendant's part, regardless of whether it involved the same subject-matter as plaintiff's suit. It should be noted, however, that the quotation is immediately preceded by, "It has been said that," and is immediately followed by: "It would probably be more accurate, in view of plaintiff's right to dismiss, to say that if both the plaintiff and the defendant, in their respective claims against each other, seek to litigate the same matter, the plaintiff cannot, by nonsuit, withdraw such matter from the litigation." To which the writer would add: "Provided the ``claim' asserted by the defendant is such as would support an independent action on his part." The defendant has the same right that the plaintiff has to control his own case, and to prevent its dismissal, if properly maintainable as an independent action. He has not the right, however, merely by asserting in the form of a cross-action for affirmative relief matter which is purely defensive and which, could not be asserted in an independent action, to circumvent the right of plaintiff to dismiss his own case.

Moreover, appellee did not seek a re-examination of the case upon its merits as an independent ground for affirmative relief. The answer denied specifically the existence of fraud or any other ground which would entitle plaintiff to reopen the case upon its merits. His prayer for judgment upon the original cause of action is thus expressly limited: "And in the alternative, and in the alternative only, and only in case said petition for Bill of Review is granted and the judgment in said original suit is vacated and set aside, then in that event, and in that event only, this defendant prays for judgment against said plaintiff for his debt," etc.

Nothing would seem to be plainer than that defendant was not seeking an adjudication of the validity of the judgment except defensively. He was resisting all efforts to reopen and re-examine the controversy, and asserted his original claim only in case the judgment were reopened at the instance of plaintiff. In so far as this pleading is concerned, it is manifest that it would go out of the case upon dismissal of plaintiff's cause of action. It is the view of the writer that the judgment validating the prior judgment can only be sustained upon the pleadings of plaintiff.

Since under our practice it is necessary in a suit to set aside a judgment to assert and maintain a meritorious defense thereto, it necessarily follows that where that question has been adjudicated in the equity proceeding, review of the judgment by appeal is thereby precluded. This is the extent of the holding in Camden Fire Ins. Co. v. Hill (Tex.Com.App.) 276 S.W. 887. This, of course, presupposes that there has been in fact a re-examination or an opportunity for re-examination of the case upon its merits and an adjudication thereon. Had the trial court rested its judgment alone upon a want of equitable grounds for reopening the case on its merits, and declined to consider its merits, then it would seem to follow that the right of appeal would not be affected. However, in the instant case the validity of the judgment was adjudicated by the court, the effect of which adjudication was to affirm the trial court's judgment.

For the reasons stated, the writer concurs in the judgments rendered by this court.