
    WAPLES PAINTER CO. v. ROSS et al.
    (No. 2408.)
    (Supreme Court of Texas.
    May 5, 1915.)
    Justices of the Peace <§=>129 — Judgment— Collateral Attack.
    The W. company secured against the owners of a lot of land a judgment in a justice’s court under writ of garnishment for supplies furnished contractors who had done work on such land. The owners failed to prosecute an appeal. Thereafter the contractors sought to foreclose their lien on the lot, joining the W. company as defendant, and the owners prayed that such company be enjoined from enforcing against them the judgment in the justice’s court on the ground that such enforcement might result in their paying the same claim twice. Held, that upon the owners’ failure to prosecute an appeal from the justice’s judgment against them, such judgment became final and not subject to review or setting aside in a collateral proceeding.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 408-411; Dec. Dig. <§=>129.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Suit by J. W. Flowers and others to foreclose mechanics’ liens against J. W. Ross and others, in which the defendant Ross prayed that their eodefendant Waples Painter Company be restrained from the enforcement of a judgment against them recovered in the justice’s court Judgment for the defendants Ross on their cross-petition (141 S. W. 1027), and the Waples Painter Company brings error.
    Reversed and remanded.
    Stuart, Bell & Moore, of Gainesville, for plaintiff in error. W. O. Davis, of Gainesville, R. E. Thomason, of El Paso, and Gregory, Batts & Brooks, of Austin, for defendants in error.
   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of facts:

J. W. Flowers and others filed their petition in the district court of Cooke county against J. W. Ross, Ancil II. Ross, Peter Brunson, and the Waples Painter Company, a corporation, to foreclose a materialman and mechanic’s lien against a certain lot owned by the defendants Ross. The defendants Ross prayed that their codefendant, the Waples Painter Company, should be restrained from the enforcement of a judgment recovered by it in a garnishment proceeding in a justice’s court, whereby it was sought to reach the fund, amounting to $52.50, which the Rosses admitted they owed to the contractor Brunson as a balance due for the construction of a sidewalk to their lot. The cause was tried before the court, who made and filed the following findings of fact, which we adopt:

“On November 5, 1909, there was filed in this cause an agreement signed by all the parties to this cause, both plaintiffs and defendants, admitting the following facts to be true:
“First. The county of Cooke owned the 40 acres of land mentioned in the petition, and divided the same into blocks, lots, and streets, reserving one block for courthouse and selling the remaining lots by deeds in the usual form and describing them by lot and block number, substantially as alleged in the petition, and the defendants J. W. Ross and Ancil H. Ross, as tenants in common, own lot No. 4 in block No. 4 by regular chain of deeds from Cooke county, down to themselves, said J. W. Ross being a married man and said Ancil H. Ross a single man, and for several years they and their mother, as partners, under the name of A. H. Ross & Son, have been conducting a hardware business in the two-story brick building upon said lot, said 40 acres, when so sold, having constituted the town of Gainesville, since incorporated under the general law, and now a city of about 10,000 inhabitants.
“Second. The defendant Peter Brunson, under contract with said J. W. Ross and Ancil H. Ross, constructed a cement sidewalk in front of said building for the price and in the manner alleged in petition, and the plaintiffs furnished the labor and material used in constructing said sidewalk as alleged in petition, for the price therein stated.
“Third. There was instituted in the justice court of precinct No. 1 of Cooke county, the two suits Nos. 11999 and 12000, as alleged in the petition and answer, in which suits final judgments were rendered as therein stated, and no appeal was ever prosecuted from the judgment in either case, and in the garnishment suit, the defendants J. W. Ross and Ancil H. Ross did not request or seek to have the present plaintiffs made parties, and said judgments have not been satisfied, and at the time of the filing of this suit, the Waples Painter Company was proceeding to enforce the judgment in the garnishment case by execution. In the answer to the garnishment and upon the trial, said J. W. Ross and Ancil H. Ross insisted that the debt could not be garnished, and that these plaintiffs had a lien upon the property.
“This cause was submitted to me upon said admitted facts, and none others were introduced in evidence, and I herewith adopt said admitted facts as my findings of fact herein.”

Upon these findings the trial court concluded as follows:

“First. Plaintiff is entitled to recover judgment for the amount asked for in their petition herein against the defendant, Peter Brunson; that they are entitled to recover lien on lot No. 4, block No. 4, in city of Gainesville, Cooke county, Tex., and a foreclosure of said lien on said lot of said defendants Ancil Ross and J. W. Ross.
“Second. I find that the defendants Ancil H. Ross and J. W. Ross are entitled to an injunction against Waples Painter Company, restraining said Waples Painter Company from the enforcement of the judgment in the justice court, precinct No. 1, in cause 12000 on the civil docket on said justice court. I find that the fact that the city has an easement in said street does not separate same from said lot so that improvements thereon will not occasion the creation of a lien on the whole lot subject to the easement right to the street.
“And that J. W. Ross and Ancil H. Ross cannot be made to pay the debt twice, because Lyon-Gray Lumber Company were not parties to the case in the justice court, and because that pourt could not, by any order, have defeated their right to determine the question of their lien in the district court.
“Judgment was entered according to these: conclusions, and the Waples Painter Company has appealed.”

The issue between the parties in this ease may be stated succinctly as follows:

J. W. Flowers and others, the plaintiffs in the court below, instituted this suit against J. W. and Ancil H. Ross, Peter Brun-son, and the Waples Painter Company, as above stated, to obtain a foreclosure of a materialman and mechanic’s lien upon the lot described in the petition, which was owned by the Rosses, defendants below. The Rosses applied to the district court for a writ of injunction against the Waples Painter Company, to restrain them from enforcing the judgment which they had obtained on a writ of garnishment before a justice of the peace, which garnished and appropriated the same debt for which the plaintiffs in this case prosecuted their suit and foreclosed their lien. To state the matter more definitely, the judgment obtained against the Rosses by the Waples Painter Company in the justice court upon garnishment was the same debt for which the district court foreclosed the lien in favor of Flowers and others. In the suit of Flowers and others against the Rosses, the Rosses sought and obtained an injunction in the district court to restrain the enforcement of the judgment of the justice court by which the Rosses were required to pay to the Waples Painter Company the same debt for which Flowers and others had obtained the judgment and foreclosure of a lien against the lot. The district court haying given judgment in favor of Flowers and others against the Rosses for a debt due to Flowers and others, upon which the suit was brought, a writ of injunction was granted against the enforcement of the justice’s judgment, on the ground that otherwise the Rosses would be compelled to pay the debt twice.

The issue presented by the plaintiff in error is that the district court had no jurisdiction to enjoin the enforcement of the judgment which was rendered in the justice court sustaining the garnishment in favor of the Waples Painter Company against the Rosses. The statement of the case makes it manifest that if both of these judgments should be enforced, the result would be, as claimed by the Rosses, that they would be compelled to pay the same debt twice, by writ of garnishment by one creditor of Brunson and the enforcement of a lien upon the property for the same debt by another creditor.

The issue presented by the evidence in this court is not the jurisdiction of the district court to enjoin the judgment in favor of the plaintiff in error rendered in the justice court against the Rosses, but the power of the district court to issue such injunction. However, it cannot be invoked in this ease, because the statement of the ease by the1 plaintiff in error shows the truth to be that in the justice court the Rosses contested the right of the Waples Painter Company to garnish the debt which they (the Rosses) owed to Peter Brunson, and, having been defeated in, that action, they failed to prosecute an appeal therefrom to the county court, which they might have done in order to have the errors, if any, of the justice of the peace corrected. Therefore the judgment of the justice of the peace became a, final judgment, and was not subject to review or to be set aside in a collateral proceeding like this. The Rosses, having failed to prosecute their defenses in the court to which they might have appealed, have no right to invoke the power of a court of equity to set aside the judgment which was rendered against them in the justice court, from which they failed to appeal.

It follows as a necessary conclusion of law that the judgment in favor of the Waples Painter Company against the Rosses in the justice court, having become thus final, cannot be attacked now upon grounds that existed at the time of the trial, which the Rosses failed to prosecute by an appeal to the court which had appellate jurisdiction to afford to the parties an opportunity to. present their defenses and have any error corrected.

The judgment of the justice of the peace-having thus become final against the Rosses, they are not entitled to have that judgment set aside in the district Court. The district court erred in enjoining the judgment of the justice of the peace in favor of the Waples Painter Company. The conclusion necessarily follows that the judgment of the Court of Civil Ai>peals must be reversed in so far as it enjoins the enforcement of the judgment of garnishment against the Rosses, and this casé be remanded to the district court to be tried in accordance with this, opinion.

HAWKINS, J.

(concurring). I think that the issue here relates, not to the jurisdiction or power of the district court, but to the propriety or advisability of granting the injunction, under the facts. However, I concur in the order made, reversing and remanding. 
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     