
    Thomas G. Western v. Zadoc Wood
    Appeal from Harris Comity.
    The refusal of the judge a quo to continue a cause upon motion, supported hy affl. davit, presents no sufficient reason, upon an application to the same court, for enjoining the judgment rendered in the cause. The remedy of the party (if any) is by a resort to a higher tribunal.
    Upon the dissolution of an injunction, it is not error to enter up judgment against the principal and his sureties in the injunction bond.
    The appellant, Western, obtained an order from a district judge to enjoin a judgment rendered against him in the district court of Harris county, in favor of the appellee.
    The bill praying the injunction alleged that the original suit in which the judgment for the appellee was rendered was instituted while he, the appellant, was in the service of the government; that before the trial he made an affidavit in the city of Austin, Travis county, where he was employed by the government, for a continuance of the cause, on account of the absence of a material witness, who was beyond the Eio Grande, in the Mexican territory, and whose testimony could not be procured in time for the then approaching term of the court; which affidavit was filed among the papers in the cause; but for reasons unknown to the petitioner, no action was had upon it, and the case being submitted to the court without the intervention of a jury, the judgment complained of was rendered against him.
    The record of the original judgment shows that “the parties appeared by their attorneys and waived the right of trial by jury, and submitted the cause to the court for ajdudication.” The injunction was dissolved, upon motion, for want of equity, the bill dismissed, and judgment rendered against the appellant and his sureties in the injunction bond, for the amount of the original judgment and interest. From this latter judgment this appeal was taken.
    
      Gillespie, for appellant.
    The judgment sought to he reversed was rendered at the Apri term, 1841, of the district court of Harris county, at which time appeals were to be had only by .notice in term time, and. by giving a bond within twenty days.
    The appellant shows by his bill that he was necessarily absent from the district court, and could not take the necessary steps for an appeal; and also relies on his application for a continuance.
    The appellant insists that the district court erred in dismissing the bill.
    He pleaded on the trial at common law, a failure of consideration. This plea was a good one upon general demurrer, and would support a verdict at common law, though it would be faulty on special demurrer for not showing how and in what manner the failure took place. By the rules of the civil law much more latitude is allowed. Issue was taken on the plea as pleaded; the appellant then had a good defense which was well pleaded, but was deprived of its advantages by the ruling of the judge, that his application for a continuance should not be allowed.
    It was certainly, for a first continuance, most full and complete.
    It is conceded that great latitude is given to the opinions of the judges at nisi prims, but there are bounds both in reason and law; and the judge in this case blindly overleaped both. It cannot be said that these matters are perfectly discretionary. We know of no discretion but a legal one. “ Where discretion begins, law ends,” so .says Lord Coke.
    The appellant then, being deprived of his defense at law, resorts to the equity side of the court. His bill, like his plea, is general in its character, but alleges sufficient grounds for the action of the court; they refused however to consider of it. This was error. The bill, as it stood before the district court, perhaps ought to have been dissolved; but surely no greater penalty inflicted on the appellant. If the bill was .defective, as the plea, it might and ought to have been specially demurred to and not answered; or it was the duty of the court to suggest to the party the impossibility of arriving at the true merits of the case under his general allegations of the facts, and the necessity of amending his bill. Such is the established practice in the courts of chancery. See 8 Porter, 272.
    The law requires the supreme court where the facts of a case are not fairly presented, to remand the cause. Such should be the judgment of this court. Let the pleadings be amended and all the facts [appear, that complete justice may be done. For the injunction the hppellee has ample security if his claim is just; no injury but a little [delay can happen to him; but on the other side, should the court fail to remand, all is lost to my client.
    
      Shelby, for appellee, with whom was JSucldey.
      
    
    The appellee insists that there is no equity in the bill, and therefore the same should not be entertained by this court. The appellee further insists, that the appellant waived any advantage that could have accrued to him, by submitting to the court the case, without the production of. any proof on the trial with regard to the consideration in support of his plea.
    The appellee further insists that the appellant, from his own showing in his bill, had no right to calculate on the benefit of the witness’ testimony, whoso absence is complained of in what he calls an affidavit, but which the appellee says is no affidavit for the continuance of a cause in the district court, as the law requires such affidavit to be sworn to in open court. There is no ground, therefore, for coming into a court of equity, when justice could have been done in a court of law. The submission to the court, in the absence of his testimony, shows he had no merits. As to distinction of cases in law and equity, see 2 Barb. & Harr. p. 6, art. 44.
    The appellee further insists that ten per cent, damages shordd have been added, according to the act of congress of 25th January, 1841. Inasmuch as the court dismissed the bill for the want of equity, the ten per cent, damages should have followed as a matter of course. The appellee also insists that this case is merely for delay, and that he is entitled to an affirmance of his judgment below, with ten per cent, damages for such delay.
    
      Webb, for appellant in reply.
    However correct the decision of the court dissolving the injunction may have been, the judgment rendered upon that dissolution was clearly erroneous. The act of congress of January 25, 1841, “To regulate the granting and trial of injunctions,” gave no good authority to the court to render judgment in this summary way against the sureties in the injunction bond; and I have searched in vain for the law which did give the authority. Ho such law is to be found. The latter clause of the fourth section of the act referred to declares that “ every bond executed for the purpose of obtaining an injunction shall, on the dissolution of said injunction, have the force and. effect of a judgment; and the party or parties whose judgment may have, been enjoined may take out execution against all the obligators! in the bond for the amount of the judgment enjoined, together withl interest thereon; and also for the costs incurred by the injunction.”] Laws of Texas, 1841, p. 83, sec. 4.
    This act makes a bond a judgment eo instanti upon the dissolution of the injunction. It neither requires nor contemplates any judicial action upon the subject, other than the bare dissolution of the injunction. The action of the court beyond this is manifestly wrong for two reasons: First, it is giving judgment against persons who have not been cited to appear, and who have had no opportunity of contesting the grounds upon which it is rendered; and, secondly, it is prejudging a matter, which the same judge may afterwards be called upon to decide. ¡
    By the 18th section of the “act of limitations” of February 4, 1841, it is provided, “ That the obligors or any one or more of them, whose name or names appear to any statutory bond, concerning which it is or shall be by law provided that it is to be, or shall become a judgment, or have the effect thereof, shall have one year next after the actual or ostensible forfeiture of the same, to move the proper court to quash said bond, or otherwise to move for and have any issues, and a jury to try the same or any other matter of fact, which on a regular action on such bond might properly defeat or modify a recovery thereon against such obligor or obligors.” Laws 1841, p. 168, sec. 18.
    This section cleaz’ly designates the time when the action of the court is to be invoked in reference to these statutory bonds or legislative judgments; and it repels the idea that it can be had at any other time, or in any other mode than is here designated. A judgment rendered against the sureties in the injunction bond, at the time of dissolving the injunction, is coram non judice, because the court had acquired no jurisdiction over the parties, by having them cited to appear. Had the parties been called upon to appear, they might have shown that the bond was a forgery; or other good reasons why judgment should not be rendered against them. The remedy against the legislative judgment is pointed out by the statute — it is clear and distinct — but there is no remedy given against the judgment of the cou/rt, except the ordinary one of appeal, and upon which the facts to show that the bond is void or a forgery cannot appear, for the reason that the party had no opportunity of urging them in the court below.
    The remedy provided by the 18th section of the “ act of limitations ” cannot be invoked against the judgment of the court, because the court which is to afford that remedy has alseady acted upon the subject and prejudged the case, by declaring the bond to be a valid one, which it must have done before it could have given judgment upon it. Besides, there is something like a legal absurdity in the proposition that the same court may be called upon, twelve months after it has rendered a judgment, to revise and reverse that judgment; especially when no reason exists for it that did not exist previous to rendering the first judgment.
    The number of judgments which exist in this case also present something of an anomaly in judicial proceedings. There is first a judgment against the appellant, Western, which was rendered in the original suit — then a legislative judgment upon the injunction bond against Western and his sureties — then a judicial judgment upon the same bond, against the same parties; and had the sureties of Western sought to avail themselves of the remedy provided by the 18th section of the “ act of limitations,” there must have been another judgment, in the same court, between the same parties, in respect to the same subject matter.
    
      
      The reporters liave not been furnished ■with Mr. Buckley’s brief.
    
   Hemphill, O. J.

This is an appeal from a decree dismissing a petition praying an injunction against a judgment, recovered at a former term of the district court.

An affidavit for a continuance had been filed at a former trial by the appellant, but by the admission of the appellant himself it appears that no action was had thereupon; no motion was made for a continuance grounded on the affidavit or otherwise, and the right of trial by jury being waived, the cause was submitted to the court for adjudication. The matters set forth in the petition furnished no sufficient ground for the interposition of the restraining authority of the court. Had a motion for continuance been improperly overruled, the remedy (if any) would have been found in a resort to a higher tribunal and not by application to the same court, invested with no additional powers, and no new facts or matters having arisen since the hearing and decision of the cause.

There was no error in dismissing the petition, nor do we perceive any in the entering of the judgment against the principal and securities in the injunction bond. By the act regulating the granting of injunctions, etc., approved January 25, 1811, it is provided that “ every bond executed for the purpose of obtaining an injunction shall, on the dissolution of the said injunction, have the force and effect of a judgment, and the party or parties whose judgment may have been enjoined may take out execution against all the obligators in the bond,” etc. The formal rendition of judgment by the court could give no greater validity or effect to the judgment on the bond arising from the operation of law. The rights of neither party could he enlarged or diminished by this act of the court, and no additional obstacle would be interposed to any relief to which the parties to the bond might be entitled.

We cannot permit the imperfect and slovenly entry of the decree in this cause to pass without observation and reprehension. There is in fact no entry of that portion of the decree which, in terms, dissolved the injunction and dismissed the petition. It is most clear, however, from the bill of exceptions, the appeal that was taken and other facts in the record, that judgment was so ordered by the court. We allude to these deficient entries — not so much for the instruction of the district clerk of Harris county, whose records exhibit abundant evidence of his skill and accuracy, but in order that the attention of clerks and courts generally may be directed to the necessity of having these authentic testimonials of adjudication of controverted rights made up with such fidelity and accuracy as to establish with certainty what action has been had by the court, so that the appellate tribunal may be fully informed of the judgment to be reviewed, or if final judgment has been entered, that the parties and the public may understand fully and clearly the precise disposition and adjustment of the rights which had been litigated.

It is ordered, adjudged and decreed that the judgment of the cóurt below in all things be affirmed.  