
    Little v. Morris.
    A writ of error does not lie immediately from an order quashing a writ of sequestration in an action of trespass to try title, and ordering a restoration of the property to the defendant in the suit and for costs, the same being an interlocutory order.
    A mandamus is not the appropriate remedy to obtain a revision by the Supreme Court of the action of the District Court in a matter involving the exercise of judgment.
    Error from Husk. The plaintiff in error brought his action of trespass to try title against the defendant in error, who was in possession, and, in aid thereof, obtained a writ of sequestration, under the provision of article 2S64 of the Digest. The defendant failing’ to give bond, as provided by article 2SG9, was dispossessed and the plaintiff put in possession of the premises by virtue of the writ of sequestration. When the cause came on for trial the defendant moved the court to quash the writ of sequestration. The court sustained the motion, and ordered the possession of tile premises to be restored to the defendant, and awarded costs against the plaintiff. The jury not agreeing- upon a verdict, there was a mistrial, and the cause was continued. The plaintiff brought a writ of error to revise the judgment, quashing the writ of sequestration and awarding the possession and costs in favor of the defendant. He also petitioned this court for a mandamus to compel the District Court to reinstate the sequestration and annul the order for the restoration of the possession of the premises to the defendant.
    
      L. T. Wigfall, for plaintiff in error.
    I. The 1st question proposed is, is the judgment quashing the sequestration and award of execution to dispossess Little and for cost of finality sufficient to support a writ of error. In support of the affirmative, it is urged that the judgment in question possesses all the essentials of a final judgment. There is a distinct proceeding by motion unknown to the petition, a j udgment ordering the legal possession surrendered up by Little to Morris and for costs. The possession here adjudicated was the very matter in controversy. The action of trespass to try title is a possessory action. The view here taken is fully sustained by this court in the case of Merle v. Andrews, 4 Tex. R., 200; Forgay et al. v. Conrad, 6 How. R., 202.
    The language in the latter case is peculiarly applicable to this. Chief Justice Taney says : “If these appellants must therefore wait until the accounts are “ reported by the master and confirmed by the court, they will be subject to •‘irreparable injury; for the lands and slaves which they claim will be taken “out of their possession and sold, and the proceeds distributed, &c., before- “ they can have an opportunity to be heard in this court in defense of their “rights.”
    So in the case at bar. If Little, by the mere fiat of the judge, is to be thrown out of possession and an insolvent man put in to commit waste and enjoy the rents and profits, without oven giving bond and security to make good his damage, and is compelled to await the final trial, lie may be thus ruined without remedy.
    Let it be remembered that Little, on taking possession, gave bond to Morris for all damages which might be assessed on the final hearing. Here is a legal possession under contract until the final trial, yet the district judge, with a single stroke of his pen, annuls this contract, is to oust a citizen from his freehold by a proceeding unknown to the law, against the principles of the common law, and in direct contravention of the spirit of our constitution and laws. In such case a district judge cannot take jurisdiction on motion.
    Overruling the motion to enter judgment nunc pro tune, error lies. (Wilkerson v. Goldthrait, 1 S. & P. R., 159.) Refusal to quash execution, error lies. (Page v. Coleman, 9 Port., 274.) Overruling motion to quash forthcoming bond to avoid execution will support writ of error. (5 Ala. R., 618.)
    
      II. Again, suppose it be said that error will not lie, then we are thrown on the application for mandamus for relief. The prospective injury is beyond dispute, and there must be a inode of redress, and none other is known save by error or mandamus. Judge Blackstone says there is a mode of redress for every conceivable injury. Here, if the writ of error and petition for mandamus be dismissed, we are then at the mercy of the sheriff, to bo turned out of possession in the face of the stipulations of our bond, and to look to an insolvent man for damages should we succeed on the final trial. Whereas, if the illegal judgment be annulled on the final hearing justice may be done, and the party in possession, under security to his adversary, can be made to respond, should he fail to surrender the possession if the suit bo decided against him.
    The bond given by Little was strictly in pursuance of law; its performance looked to the trial in chief. What right had a subordinate judge or any other to annul the contract, and by his mere fiat oust a freeman from his freehold? If the writ of ouster be executed, how can Little in any event comply with the terms of the bond? The law certainly did not intend ii mockery, nor does it permit a citizen to be dispossessed of his freehold, “except by due course of “the law of the land.” It seems that a very undue course of law has been hero pursued. (16 sec., Bill of Bights, Cons. Texas.)
    Had the judge only quashed the sequestration there would have been'.no cause of complaint. But he goes further, and anticipates the verdict of the jury b3r deciding the merits in controversy, the right of possession to the land in question, and awards execution.
    There is a class of orders on which an appeal lies. Of this class are those involving a decision of some matter touching the merits of the controversy. (Per Kent in Buel v. Street, 9 Johns. R., 448.) The judgment here complained of goes directly to the possession of the land in dispute. It touches the merits of the ease.
    The antiquated idea that on mandamus the only order that can'be made is that the court “proceed to judgment” does not meet the justice of the questions which arise under the various applications for the writ, and is consequently not the rule at this day. Mandamus is the proper remedy to revise the action of an inferior court in quashing or refusing to quash an auxiliary attachment. (Gee v. Ala. Life Ins. and Trust Co., 13 Ala. R., 479.) So the remedy would seem to be to the Supreme on the refusal of an inferior court to quash an execution in the name of a deceased person. (Moore & Cocke v. Bell, 13 Ala. R., 459.)
    So when a party proposes interrogatories under the statute to his adversary, and they are improperly rejected, the appropriate remedy to compel their allowance is by mandamus. (Mallory v. Mattock, 10 Ala. R., 595.)
    In the above case the judgment was to compel the allowance of the interrogatories ; here it is to compel him to stay the execution for possession, which he, the judge, has granted.
   Whebleb, J.

The sequestration was not a distinct independent act. It' was but process obtained in aid of and as auxiliary to the action of trespass to try title. And the judgment quashing the writ and awarding the restoration of the possession to the defendant was but an interlocutory j udgment, rendered during the progress of the cause in a proceeding collateral and incidental to the main action. That it was not a final judgment in the case seems quite too clear to require the support of argument or authority.

It is the settled doctrine of this court, affirmed by repeated decisions, that an appeal, and, since the repeal of the 141st section of the act of 1S46, a writ of error will not lie to revise an interlocutory judgment or any order made during the progress of the cause until after final judgment rendered in the case. (Goss et al. v. McLaran, 8 Tex. R.; Stewart v. Jones, 9 Tex. R.; Byers v.

Janes, 2 Tex. R., 529; Robinson v. Baillieul, Id., 160; Ewing v. Kinnard, Id., 163; Warren v. Shuman, 5 Id., 441.)

The writ of error in this ease must therefore be dismissed. This dispenses with tiie necessity of considering- the questions presented by the very ingenious and able argument of counsel for the plaintiff in error upon the merits of the judgment sought to be revised.

The petition for a mandamus seeks to accomplish the same purpose as the writ of error. A mandamus is not the appropriate remedy to obtain a' revision by this court of the judgments of the District Court. It does not lie to control the action of an inferior court in a matter involving the exercise of judgment. The petition manifestly does not present a case proper for the awarding of the writ. It therefore must also be dismissed.

Writ of error dismissed.'

Note. — After tho opinion was delivered W. W. Morris, also for plaintiff in error, moved the court to suspend the opinion and continue the cause to next term, stating that he had not been aware of tho previous decisions'of the court upon the subject, and expressing the opinion that if time were allowed he could show good cause for a change of the rule. But the motion was overruled.  