
    COTTON v. REA et al.
    (Supreme Court of Texas.
    Feb. 4, 1914.)
    1. Judgment (§ 415) — Injunctive Relief-Void Judgment.
    The district court, in the exercise of its equity powers, has jurisdiction to restrain the enforcement of a county court judgment which is a nullity where the invalidity is affirmatively disclosed by the record.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 781-783; Dec. Dig. § 415.]
    2. Judgment (§ 416) — Validity — Injunc-tive Relief— Jubisdiction.
    Plaintiff brought suit before a justice on an assignment of wages against the assignor’s employer, in which the assignor intervened; both he and the employer filing a counterclaim for $90 against plaintiff for usurious interest paid to him by the assignor. The justice having rendered judgment in favor of plaintiff and dismissed the counterclaim, the employer appealed to the county court, where judgment was rendered in its favor against plaintiff. Held that, since the counterclaim urged in the justice court was sufficient in amount to give the county court jurisdiction on appeal, the judgment of that court was not void so as to render its enforcement subject to injunction in another court, however erroneous.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 784, 786-788; Dec. Dig. § 416.]
    3. Pleading (§ 271) —Amendment —Plea— Verification.
    Though a plea alleging usury seeking to recover a penalty is required to be verified by Rev. Civ. St. 1911, arts. 4982, 4983, the omission of such verification is not a jurisdictional defect, but one which may be corrected by amendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 819; Dec. Dig. § 271.]
    4. Exemptions (§ 147) — Eneobcement oe Right — Injunction — Sale oe Exempt Property.
    An averment that exempt property was to be sold in execution of a county court judgment was sufficient to invoke the jurisdiction of the district court to enjoin the sale, regardless of the value of the property and unaffected by Rev. Civ. St. 1911, art. 4653, providing that an injunction restraining the execution of a judgment shall be made returnable to the court in which the judgment was rendered.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 171; Dec. Dig. § 147.]
    ■Certified. Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Almon Cotton against W. M. Rea and others. Judgment for defendants, and plaintiff appealed to the Court of Civil Appeals.
    Questions certified to Supreme Court.
    Slay, Simon & Wynn, of Ft. Worth, for appellant. Bryan & Spoonts, of Ft. Worth, for appellees.
    
      
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      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PHILLIPS, J.

The statement of the case as made by the honorable Court of Civil Appeals in its certificate and the questions presented thereunder are as follows:

“This suit was instituted by Almon Cotton in the district court of Tarrant county against the Texas Brewing Company and W. M. Rea, sheriff of Tarrant county, to restrain the collection of a judgment rendered against Cotton in favor of the brewing company by the county court of Tarrant county for the sum of $51, and for costs of suit; and also to restrain the sale of certain office furniture and fixtures, including a safe, desk, fan, etc., belonging to plaintiff and which had been levied on by the sheriff by virtue of an execution issued on said judgment. It was alleged in the petition that the suit in which the judgment was rendered was instituted in the justice court by Cotton against the Texas Brewing 'Company on an account for wages earned by C. F. Dreschel while employed by said company, which account had been assigned to Cotton by Dreschel; that Dreschel intervened in the suit, and he and the brewing company joined in a counterclaim against Cotton for $90 on account of usurious interest paid to Cotton by Dreschel in connection with the demand for $12 asserted by Cotton in that suit; that later and before the trial, in the justice court the brewing company filed an amended plea alleging that it had purchased from Dreschel his said claim on account of usury, and thereafter the counterclaim was prosecuted by the brewing company alone; that judgment was rendered in the justice court in favor of Cotton for $12 and denying the counterclaim; that upon appeal by the brewing company to the county court the latter court rendered judgment in favor of the Texas Brewing Company against Cotton for $51 and costs of suit. It was further alleged in the petition that prior to the trial in the justice court the counterclaim was verified by Dreschel alone and not by the Texas Brewing Company, but upon motion made in the county court to dismiss the counterclaim for lack of proper verification the latter court permitted the brewing company .to amend the plea by verifying it. Plaintiff further alleged that by reason of the failure of the brewing company to verify the counterclaim in the justice court the judgment rendered thereon in the county court in favor of the brewing company for $51 on said counterclaim was void. In his petition for injunction plaintiff further alleged that the property so levied upon by the sheriff was at the time of the levy used by plaintiff, who is the head of a family, as the tools, apparatus, and books belonging'to his trade and business of conducting and operating a chattel loan business and buying and selling wages and that same was under the law exempt from forced sale; however, plaintiff failed to allege in his petition the value of the property so levied upon. The petition concludes with prayer for writ of injunction restraining the sale of the property and the collection of the judgment and also for general relief. The petition was addressed to the district court and was filed with the clerk of that court April 29, 1911. Upon the petition was indorsed the following fiat: ‘4/29/11. Upon the filing of the application and a bond conditioned as required by law and duly approved, the clerk will issue the writ as prayed for. R. H. Buck, Judge 48th Jud. Dist.’ In obedience to this order the writ of injunction prayed for in the petition was issued by the clerk of the district court and served upon the defendants and was made returnable to the district court in which the suit was filed. Later, on motion of the defendants, the injunction was dissolved, and from that order the plaintiff has duly perfected his appeal to this court.

“Upon the foregoing statement we deem it advisable to certify to your honors for determination the following questions:

“First. Did the district judge have jurisdiction to grant the writ of injunction that was issued?

“Second. Did the district judge who granted the writ have jurisdiction to hear and determine the motion to dissolve it?”

The proper determination of the first question requires a consideration of the dual nature of the injunction suit in the district court: First, as an action to restrain the enforcement of a judgment of another court because of inherent invalidity; and, second, as a proceeding to prevent the unlawful sale of exempt property, as the jurisdiction of the court to issue the writ under these several causes of action, while resting upon the common ground of its equity powers, is controlled by distinct rules, depending in one instance upon the legal effect of the judgment assailed and in the other being uninfluenced by that issue. Viewing the question as it arises under the cause of action presented in the petition which concerned the validity of the county court judgment, the district court, at all events and regardless of the effect of article 4663, R. S. 1911, upon the authority to enjoin the enforcement of a void judgment of another court, was without jurisdiction to interfere with its execution if it was not void; and this part of the question may be resolved, therefore, by determining that of the validity of the judgment. Our view is that, if the judgment was a nullity as affirmatively disclosed by the record, it was subject to such collateral attack in any competent court otherwise vested with jurisdiction of the immediate action in which it might be challenged; that the authority of the court to restrain the enforcement of such a judgment is uncontrolled by article 4653, but proceeds from its power, in the exercise of a jurisdiction otherwise appropriately invoked, to protect rights from the operation of a void proceeding. Bender v. Damon, 72 Tex. 92, 9 S. W. 747; Ketelson et al. v. Pratt Bros. et al. (Civ. App.) 100 S. W. 1172.

The judgment of the county court was clearly not void. The counterclaim urged in the justice court was sufficient in amount to give it jurisdiction on appeal. This claim constituted the subject-matter of the suit; and, having jurisdiction both of it and the parties, the court possessed the authority to render a judgment in the matter. Its jurisdiction being complete and having been lawfully exercised, its judgment was not void, however erroneous.

Any contention to the contrary must rest upon the proposition that the verification of the plea presenting the counterclaim was a jurisdictional requisite, but we regard this view as unsound. If it be conceded that verification of such a plea, seeking recovery of the penalty provided in article 4982, is necessary under article 4983, to the effect that no evidence of usurious interest shall be received on the trial of any case unless the same “shall be specially pleaded” and verified by the affidavit of the party wishing to avail himself of “such defense” — which latter article was originally enacted before the passage of the act providing for the recovery of the penalty, now article 4982, and when the plea of usury was available only as a defense, a question which we are not required to determine, the verification of the plea is only for the benefit of the adverse party and may be waived. Arnold v. Macdonald, 22 Tex. Civ. App. 487, 66 S. W. 529, in which a writ of error was refused by this court. It was capable of amendment (Poe v. State, 72 Tex. 625, 10 S. W. 737), and therefore presented no new cause of action as a counterclaim not pleaded in the justice court. It was within the discretion of the court to permit the verification of the plea by way of amendment. Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227. The judgment, while possibly erroneous, would not have been void, in our opinion, if it had been rendered upon the unverified plea. Van Fleet on Collateral Attack, § 251; Freeman on Judgments, § 118. It is apparent that the district judge was without jurisdiction to issue the injunction on account of the alleged invalidity of the judgment.

Considering the question, however, as' related to the authority to restrain the sale of exempt property, we are of the opinion that the district judge had jurisdiction to grant the injunction. That such remedy lies to prevent the sale of exempt property under execution is established. Stein v. Frieberg, 64 Tex. 272. It is likewise clear that the authority of the court to grant the writ in such case is unaffected by article 4653. Leachman v. Capps & Cantey, 89 Tex. 690, 36 S. W. 250. If it be assumed that under amended section 16, art. 5, of the Constitution the county court has exclusive jurisdiction to issue injunctions in cases where the matter in controversy exceeds 8200 in value but does not exceed $500, no allegation of value was made in this case; and it cannot be said therefore that the suit in this phase was within the jurisdiction of that court. De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882. The averment of the exemption of the property from forced sale was sufficient to invoke the jurisdiction of the court, regardless of the element of value. Its rightful exercise in the issuance of the writ would, of course, depend upon whether the property was exempt; but a determination that it was not exempt, while decisive of the right to the relief, would not affect the court’s power to entertain and hear the cause. This power, which constitutes the jurisdiction of a court, may exist though the pleading under which the suit is instituted is insufficient to sustain the action. The question whether the property levied upon was in fact exempt is not to be confused, therefore, with that of jurisdiction, which alone is presented by the certificate and here decided. As the allegations of the petition in the injunction suit were not such as to bring the case within the original jurisdiction of any other court, but were sufficient to invoke equitable relief, the issuance of the writ was within the jurisdiction of the district court. Gamel v. Smith, S Tex. Civ. App. 22, 21 S. W. 628. We express no opinion upon the question of the right to maintain such a suit in that court if subsequent pleading should disclose that the value of the property involved was an amount within the jurisdiction of the county court.

We answer both questions in the affirmative.  