
    BAKER v. CROSBYTON SOUTHPLAINS R. CO.
    (No. 2433.)
    (Supreme Court of Texas.
    Jan. 26, 1916.)
    COURTS i&wkey;4S0 — Jurisdiction — Injunction Against Execution — Statutes.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, providing that injunction' to stay execution on a judgment shall be returnable to and tried in the court where such judgment was rendered, the district court is without jurisdiction to try the issues in a suit to enjoin execution on a judgment of the county court; it not affirmatively appearing that the judgment is void or that the property attempted to be levied on is exempt.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by the Crosbyton Southplains Railroad Company against J. A. Baker for injunction. Judgment for plaintiff was affirmed by the Court of Civil Appeals (146 S. W. 569), and defendant brings error.
    Reversed and rendered.
    R. A. Sowder, of Lubbock, and Cooper, Merrill & Lumpkin, of Houston, for plaintiff in error. W. D. Benson, of Lubbock, for defendant in error.
   YANTIS, J.

J. A. Baber, the plaintiff in error, secured a judgment in the county court of Lubbock county, against the Crosby-ton Southplains Railroad Company, defendant in error herein. A portion of the judgment was paid. Baker baused to be issued an execution out of said county court in his favor, and was threatening to levy it upon the property of the said Crosbyton South-plains Railroad Company, defendant in error. The latter’applied to the district court of Lubbock county for a temporary injunction to restrain the levy of said execution from the county court. The injunction was granted by and made returnable to the district court, and an order entered restraining the officers from levying said execution. From this order an appeal was prosecuted to the Honorable Court of Civil Appeals for the Seventh District By said court the judgment of the district court, which granted said restraining order, was affirmed. A writ of error was granted by this court upon the question, which is controlling in the case, as to the jurisdiction of the district court to hear and determine the controversy as to the merits of the injunction.

The litigation arose in this way: The Crosbyton Southplains Railroad Company, defendant in error, brought a condemnation suit against J. A. Baker, who is the plaintiff in error in this suit, in the county court of Lubbock county, to condemn part of lots 6, 7, 8, 9, 10, 11, and 12 in block 33 of the Over-ton addition to the town of Lubbock, in Lubbock county, Tex. for right of way purposes. The judgment of the county court was, in effect, that the lots were condemned for right of way purposes as prayed for, and J. A. Baker was given a judgment against the said railroad company in the sum of $1,750 as damages. The judgment also provided that the sum of $973.60 should be retained in the registry of the county court to pay and satisfy a vendor’s lien note owed by J. A. Baker to E. P. Watts. The railroad company paid to J. A. Baker upon said judgment the sum of $654.52, but did not deposit in the registry of the court the amount called for as a deposit by said judgment to pay the said note held by E. P. Watts. At the time the judgment was rendered in the county court, the Watts note had been placed in the hands of an attorney for collection, and attorney’s fees were due thereon, but for some reason were not taken into account in rendering the county court judgment. Watts was not a party to the suit in the county court. In due time he filed a suit in said district court on said vendor’s lien note againist J. A. Baker, the plaintiff in error, to recover the amount of said note, interest, and attorney’s fees, tie also prayed for a foreclosure of his lien. The Crosbyton Southplains Railroad Company was made a party defendant in said suit by Baker. In this state of the litigation, Baker caused the execution to issue out of the county court on the judgment which had been rendered in his favor therein. The injunction sued out in the district court by said railroad company was to restrain the levy of this execution. There was no allegation by the railroad company in its application for injunction charging that the judgment of the county court was void, or that the property about to be levied upon was for any legal reason not subject to levy and sale under the execution. The only charge is that the judgment is not large enough in amount to satisfy the attorney’s fees on the said Watts note, of which no account was taken in the trial in the county court, and that the execution is about to be levied upon the rolling stock of the railroad company.

We think the Court of Civil Appeals erred in affirming the judgment of the district court. The latter court was without jurisdiction to try the issues involved in the injunction suit. It had jurisdiction to issue the writ of injunction, but its duty was to make it returnable to the county court in which the judgment was rendered. Article 4053, Vernon’s Sayles’ Texas Civil Statutes 1914, provides that:

“Writs of injunction granted to stay proceedings in a suit, or execution on a judg’ment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered. * * * ”

This statute commanded that, when the district court issued its writ of injunction, it should make it returnable to the county court where the judgment which was under attack by it bad been rendered. By implication it deprived tbe district court of jurisdiction to do more, except in cases where the judgment of the county court is void upon its face, or where it appears affirmatively from the record that such judgment is void, or that the property attempted to be levied upon is exempt from such levy, or is owned by persons not parties to the judgment Cotton v. Rea, 106 Tex. 220, 163 S. W. 2; Moore v. Vogt, 127 S. W. 234; Lincoln v. Anderson, 51 S. W. 278; Wheeler v. Powell, 114 S. W. 689; Bell v. York, 43 S. W. 68; and Texas & Pacific Railway Co. v. Butler, 52 Tex. Civ. App. 327, 135 S. W. 1064. If the rule were otherwise, it would result in conflicts of judgments in trial courts, and in interminable confusion. The remedy for an erroneous judgment is by direct appeal, and not by application to another trial court for restraiht of the judgment by injunction.

This holding is not in conflict with the cases of Leachman v. Capps & Canty, 89 Tex. 690, 36 S. W. 250, and Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578, where in each case the proceeding was to protect the homestead which was exempt from forced sale. In such cases the parties do not sue to enjoin the execution of the judgment in the sense of seeking to impair or destroy the judgment, but only sue to prevent the levy upon and sale of the property belonging to them, because such property in no event could be subject to sale under any execution, however valid the judgment upon which it issued might be.

The district court being without jurisdiction to hear and determine the merits of the injunction, it follows that the judgment of the Court of Civil Appeals, which affirmed the judgment of the trial court, should be reversed. The petition for writ of injunction presents no valid ground for a stay of execution, and the judgment of the district court should be here reversed and rendered in favor of the plaintiff in error, and it is, accordingly, so ordered.

HAWKINS, J.

I concur in the result, and also in the reasoning upon which it is rested, including the application made of article 4653; but I do not think this case calls for a decision as to whether said statute does or does not apply where the judgment under which the execution issued is void, etc., and upon that point I express no opinion. 
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