
    John W. Moore v. John F. Torrey, Adm’r of James Pickup, Deceased
    Writ of Error from Harris County.
    After a petition has been fully answered by the defendant, be cannot be allowed to file an exception or demurrer operating as a plea to the jurisdiction of the court. The latter should be pleaded first.
    A party will not be allowed to seek relief on equity principles who has neglected to avail himself of the ordinary remedies afforded by courts of law.
    
      In December, 1840, Torrey, as the administrator of James Pickup, obtained judgment for $1,351.59 on motion against Moore as sheriff of Harris county, and the securities on his official bond, for failing to return certain executions issued in favor of said Pickup.
    In June, 1842, Moore filed a bill praying that said judgment might be perpetually enjoined, alleging as reasons therefor that neither he nor his securities had been notified of the motion upon which such judgment was rendered; that the amount of damages assessed against him was excessive and illegal; that of the four executions which had been charged to him three only had ever been in his hands; and that these were to be discharged by the payment of Texas promissory notes, and that an excessive and oppressive levy had been made on the property of himself and securities. The answer of defendant was fully responsive to the petition, denying the allegations therein contained. The injunction was dissolved and the bill retained as an original bill, and the cause continued. At a subsequent term the defendant asked and obtained leave to amend his answer, and filed what he calls a “ peremptory exception ” as follows:
    
      “ Leave of court being first had, defendant files this, his peremptory exception to plaintiff’s petition, and says that it is wholly insufficient in law' and equity to sustain the plaintiff’s action, because he says the law by appeal or error afforded him a full and complete remedy without resorting to a court of chancery for relief, wherefore he prays judgment and to be hence dismissed with his costs.” The complainant moved the court to strike out the exception on the ground that it was too late to except after making full answer; which motion was overruled by the court. The decree of the court.which purports on its face to have been rendered on a hearing or examination of the bill, answer and exhibits, perpetuates the injunction as to the execution and levy, leaving the defendant the liberty of suing out another execution or a sei. fa. on his judgment. Which decree the complainant now seeks to reverse by writ of error.
    
      James W. Henderson, for plaintiff in error,
    made the following points:
    1. That the court below erred in permitting the defendant to file a new plea, or one that questioned the legal validity of plaintiff’s petition, after having fully answered at a previous term. The decisions of the court in the cases of Jones v. Nowland, and McKenzie v. Hamilton, sustain fully this point. Dali. Dig. pp. 451, 461.
    2. If there was no error in allowing the new plea there was in not permitting the plaintiff to have the benefit of a trial by jury upon the bill-and answer.
    
      3. The demurrer coming in'as an amendment to the answer was no amendment but a new plea, and one that was inconsistent with the first plea pleaded and should have been stricken out by the court. 0. B. La. p. 24; 1 Ala. 83.
    4. A demurrer in legal acceptation is no answer, and it would be absurd for a party to answer fully and then by way of amendment by demurrer come in and say he does not answer. 3 Bac. Abr. 458.
    5. The demurrer operated as an admission of all the allegations in the bill, and the court erred in not granting the full relief prayed for. 3 Yerg. 366; 2 Pet. Oond. 518; 6 id. 644; 8 Pet. 244; 1 Madd. Oh. 125, 130; 4 Haywood, 209.
    6. Where there are good and bad counts and a general demurrer to the whole, judgment must be given for plaintiff. 2 Stewart, 480; 4 Porter,-17.
    Buckley, for defendant in error.
    The first point made by the plaintiff is controverted on the ground that every inferior court is clothed with discretionary powers as to permitting pleadings to be amended. 1st Laws of Texas, 204, sec. 20; 4th id. 89, secs. 10, 12; 5 Munf. 308; 4 Lit. Sel. Cas. 201; 4 Hen. & Munf. 405. The amendment admitted by sanction of the court went to the whole case and was therefore a -plea to the merits (La. Code Prac. art. 346), and maybe filed after issue joined.
    The next point is not well taken because the record shows no demand of a trial by jury. The case at bar is one in chancery, in which no party is entitled to a jury. Laws Texas vol. 5, 83, sec. 7. The right of trial by jury secured in the constitution is applicable to criminal cases only. Const. Dec. Bights, sec. 9.
    The third point is not maintainable because the original answer contains the same matter in substance in the reserving clause and prayer which the demurrer contains. There never could be an amendment if the party be restricted to pleading the same thing over and over again without introducing new matter.
    The fourth point might be urged with some force where the system of special pleading existed; but here the term “ answer ” embraces every species of defense.
    The fifth cannot be sustained because by the record it appears an answer was filed denying the allegations of the bill. If the position" of plaintiff be sustained, the law securing the right of pleading as many separate and distinct matters, whether of law or fact, as the defendant might choose, would be nugatory. 4 Laws Texas; 89, sec. 10.
    The court will presume that the district court rendered its decree upon full evidence, it being a court of general jurisdiction, and the record showing nothing to the contrary. 6 Yt. 509.
    The petition shows no cause why Moore did not appeal from the judgment rendered in 1840. That judgment being rendered by a court of general jurisdiction is conclusive upon all courts of concurrent jurisdiction. 2 Aik. 381. A judgment rendered by a court of competent jurisdiction is not void for error or irregularity in the previous proceedings. 6 Yt. 509. A court of equity will not interfere where the party neglected to make his defense at law. 1 Madd. Cli. 136, note; 1 Story Eq. 117, sec. 105.
   LipsooMB, J".

It is objected by the appellant’s counsel that the court below erred in not overruling the peremptory exception of the defendant, after making a full answer. We believe that the exception should have preceded the answer, although by the rules of court at the time of the rendition of the judgmentdn this cause in the court below, and by the present statute, the exception and answer should have been filed at the same time; yet in the order in which they shoirld have been presented, the exception should have been first. The objection is therefore well taken, and we should reverse the decree, if it had been founded on the exception. But whatever the error may have been in the reception of the defendant’s exception and the refusal to strike it out on the appellant’s motion, it does not appear from the record to have had any influence on the decree subsequently made; but it seems that the judge, after allowing it to be placed on the record, gave it no effect whatever. The decree is very inartifi-cially drawn up, and 'the recoi’d contains much irregularity; and what increases the awkwardness of the proceedings of the court below is, a discrepancy between the decree and the statement of the presiding judge, designed by him perhaps, as a bill of exceptions.

In this statement the judge, after recounting what had been done in the cause, proceeds to say “the cause then was tried upon the sec-_ ond plea or exception of defendant.” Now a reference to the decree; shows that it could not have been founded on the exception. Because if it had, the bill could have been dismissed, for want of equity on the ground that the remedy was complete at law; this was the object sought to be effected by the exception. It could not have given the complainant costs. And lastly, if the exception had been sustained, the injunction could not have been perpetuated as to the particular execution and the levy made under it. It is very much to be regretted that such irregularities are found in the records sent up to this court. It is, however, hoped that more care and attention on the part of judges and counsel, in entering orders, decrees and judgments, will prevent a recurrence of the same faults. When we take up the decree we are at no loss to perceive, that it was as it assumes to be — based on the bill, answer and exhibits, and not on the exception of the defendant. It remains then for us to inquire if there was error in not decreeing further relief. It is presumed the relief granted was founded on the supposed excessive and oppressive levy under the execution; how far this was, in principle, correct, will not be inquired into, as the defendant seems to have submitted and asked no appeal; we will observe, however, that if the court below was right in granting any relief at all, that it went to the utmost extent, and that there is no other sufficient ground on the principles of equity to disturb the judgment. The only ground in the bill for granting the injunction is the averment of a want of notice, and consequently a want of an opportunity to make a defense. This is expressly denied by the defendant’s answer. And even this averment is made with a qualification that leaves the fact of notice too equivocal for the searching principles of equity jurisprudence. Where the strict rules of the common law courts are administered, the manner in which a notice may have been given is often very material; but in a court of chancery, it would in most cases be held to be of very little importance.

If the complainant really and in truth had notice of the motion against him in the district court, and failed to defend, trenching himself on the supposed illegalityof the notice, he cannot now, with a good conscience, ask to be relieved from the position in which he has been placed by the court of law. That court was the appropriate tribunal for deciding on the legality of the notice. The inference fairly deducible from the averment is, that, he in truth had notice, but believing it not to have been given according to the forms of law, he paid no attention to it. The averment, such as it is, has, as before remarked, been unequivocally denied by the defendant’s answer. The other averment, it is believed, will be sufficiently answered by saying, if true, the complainant had full and ample remedy at law without asking for an injunction.

If the judgment was for too great an amount, or was against improper parties, or the judgment itself, could not have been legally rendered under the circumstances, an appeal or writ of error would have been the ordinary means of obtaining an adequate remedy. A party will not be heard to invoke relief on equity principles, who has neglected the ordinary remedies afforded by courts of law.

Believing the argument of the plaintiff’s counsel refers to a supposed case, not presented by the true construction of record, we omit noticing his authorities fully, acquitting him of any fault, and believing the position assumed by him, resulted from the irregularities before noticed in the record. The decree of the court below is affirmed.  