
    Doss v. Miller, Adm’r.
    Where an injunction to stay a judgment was granted more than six months after its rondition, and the grounds upon which the injunction was obtained appeared to have existed within the knowledge of the party when the judgment was rendered, and no excuse was offered lor not having made tho application within tho time prescribed by law: Held, That the injunction was properly dissolved and the suit dismissed on demurrer. (Note GO.)
    Appeal from Houston. The appellant filed his petition on the 22d clay of March, 1848, praying an injunction to stay execution upon two judgments previously recovered against him in favor of the appellee’s intestate, Griswold-one for the sum of four hundred and twenty-six dollars and sixty-eight cents, on the 4th day of November, 184G, and the other for one hundred and six dollars and forty-five cents, on the 7th day of June, 1847. The grounds on which the injunction was asked, as set forth in the petition, are, that on the 13th day of December, 1844, the intestate Griswold sold to the plaintiff a certain mare for tho consideration of six hundred and forty dollars in hand paid; that,he warranted the mare to be sound, but that she was unsound, and shortly thereafter died; that lie brought suit against Griswold in tho District Court of Houston county on the 23d day of December, 1840, to recover the smn of one thousand dollars damages for the false and fraudulent representations of tho defendant, in the sale to him of the mare; that he did not bring suit earlier because he owed Griswold the four hundred dollars for which the larger judgment had been obtained by the defendant against him, and lie hoped it might be amicably settled; that he did not bring suit until he was informed by his attorney that lie could not set oil' his claim for damages against the demand of the defendant, then in suit against him ; that the defendant was a non-resident of the State, and had not property within the knowledge of the plaintiff sufficient to indemnify him for the injury which would be done him should payment of the judgment be enforced by a sale of his property under execution.
    Note (50.—Cook v. Baldridge, 39 T., 250.
    Tiie petition was addressed to the'judge of the third judicial district, “ there being no judge of the sixth,” and an injunction granted on the fourteenth day of March, 18-18, in accordance with the prayer of the petition.
    The defendant in the injunction excepted to the petition on two grounds: 1st, tiie want of equity in the petition; 2d, the granting of the injunction more than six months after the rendition of tiie judgment enjoined. I-Ie also answered under oath, fully, all the matters alleged in the petition as affording grounds of equitable relief.
    The court sustained tins exceptions to the petition, dissolved the injunction and dismissed the case, and the plaintiff appealed.
    
      T. J. Jennings, for appellant.
    The only ground assumed by the defendant in support of his demurrer, in the District Court and in his brief here, is that the injunction obtained by plaintiff was granted more than six months after the rendition of the judgments which it stays, in contravention, as he says, of the requisitions of the 151st section of the District Court act of 1S4G, p. 405. To which we reply that that section contemplates only injunctions in suits which impeach or open the judgments enjoined, and creates no bar to injunctions in suits which admit Ihe regularity, fairness and justice of the judgments in question, but setup against the executions thereon matter arising since the date of the judgment, such as payments, equitable oil-sets, &c. In this case we do not complain against the judgments but of the executions enjoined, and of them only.
    
      S. A. Miller, for appellee.
    The injunction in this case was granted to stay executions which had been issued on judgments recovered more than six months before the granting of said injunction. (Hart. Dig., art. 1599.) This was illegal and improper, unless complainant below had brought himself within one of the exceptions in said seclion of law, by reference to which and to complainant’s bill in connection it will be seen he did not bring himself within either of the exceptions of said section, and therefore the court below properly sustained the demurrer to complainant’s bill.
   Wi-ieeler, J.

The act of 184G, section 151, (Hart. Dig., p. 495,) provides that “no injunction to stay an execution shall be granted,‘but within six months after the judgment is obtained,” &c.

The injunction in this case was not granted within six months after the rendition of either judgment sought to be enjoined, and the party applying for the writ has not brought his case within any of the exceptions contained in (ho statute. The grounds upon which it was sought appear to have existed wilhin (lie knowledge of the party when the judgments were rendered, and no excuse is offered for not having made his application within the time prescribed by the law. The injunction was granted manifestly against law. That being (he sole object of the suit, upon its dissolution the case was rightly dismissed. Nothing remained to be litigated between the parties in that case. And it is unnecessary now to inquire whether, had the petition been filed in time it disclosed any valid grounds of relief against the judgment.

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.  