
    Wright and others v. Thomas.
    Where the plaintiff moved to set aside a nonsuit on the ground that his attorney, expecting to be in attendance the ensuing week, had spoken tc another attornev to represent him in the case until he should reach the court, but the latter attorney liad failed to do so; Ileld, That the motion was properly overruled. (Note 75.)
    Where an action of injunction was dismissed for the want of prosecution, the judgment being “that the plaintiff take nothing by his petition.” and '‘that the defendant go hone© without day;*’ and the plaintiff at the same term moved to set aside the judgment, which motion was overruled; afterwards, at the same term, the defendant moved the court to enter judgment against the plaintiff and his sureties in the injunction bond, which motion was sustained: Jlcld, That to have authorized the judgment ln**t rendered the court should first have reinstated the case; then, if the. petition showed no equity, or if the answer repelled the ease made by the. petition, or if fcho plainfiiF had abandoned his complaint, the defendant might have had the. injunction dissolved, his judgmont against the obligor» in the bond, and the petition dismissed; that the judgment should lie reversed, and that the proceedings subsequent to the overruling of the motion to .-einstate < the caso should bo set aside and annulled.
    Error from San Augustine. The plaintiff in error TVright petitioned fho judge of the. District Court for San Augustine county for an injunction to slay an execution upon a judgment recovered against him in that county by the defendant in error. lie gave bond with his enpiaintiffs in error Needham and Lewis as Lis sureties, and thereupon tlie writ issued. At the Fall Term, 1848, of the District Court, thereafter the defendant in the injunction, Thomas, answered, aud moved to dissolve the injunction upon the petition aud answer, which'the court refused. On the 21st day of October, 1848, the defendant tiled a supplemental petition, making oilier persons parties defendant. There was no prayer for citation against them, nor did it appear that citations were, issued. At tlie Spring Term, 1850, the defendant appeared, and the piaiiitiíí failing to appear and prosecute his suit, the court gave judgment final, dismissing tlie suit for the want of prosecution. On a subsequent day of the term tlie plaintiff appeared aud moved the court to reinstate the cause for reasons assigned, which were that tlie attorney of the plaintiff was expected t.o be in attendance on the court tlie ensuing week, and that lie had spoken to an attorney to represent him in tlie ease until he should reach the'court. This motion the court overruled on tlie 27th day of April of that term. After-wards, on the 2d day of May of the same term, the defendant in the injunction aud plaintiff ill the execution enjoined came into court and moved, the court to give judgment against the plaintiff Wright and his sureties upon the injunction bond, Needham and Lewis, for the amount, of the original judgment and damages. On this motion the court next day gave judgment against Wright., the principal, and Needham and Lewis, his sureties in tlie bond, for the amount of the original judgment, but refused to give damages. The judgment recited tlie failure of the plaintiff to appear on a'loriner day of ihe term and the judgment then rendered dismissing tlie case for tlie want of prosecution, and proceeded, “It is now therefore adjudged that the said plaintiff’s injunction be dissolved and this bill be dismissed, and that he pay all costs,” <fec. It then recited the motion to reinstate and the judgment overruling the motion. It further recited the application for "judgment on the bond, and proceeded to give judgment accordingly for the amount of the original judgment. The obligors, being the plaintiff in the injunction and his sureties, brought a writ of error.
    The errors assigned were the rulings of the court—
    1st, In dismissing the ease for tlie want of prosecution ; 2d, In refusing to reinstate the case; aud, 3d, In giving judgment on the bond.
    
      T. J. Jennings, for plaintiffs in error.
    I. Tlie effect of the non pros, was certainly to put tlie plaintiff entirely and finals out of court, and, of course, his sureties as privies. The merely incidental parties, who owed their place in court at all to him, clearly went out with liim. The English of this is too plain for illustration.
    II. But if the plaintiff was not entirely out of court by the non pros., that court was entirely done with liim when it refused to let him in again upon the motion to set aside the nonpros. And he being out of court, and of course his privies with him, it is difficult to determine, as a matter of taste, whether it is harder than stranger or stranger than hard for a judgment to be rendered against him and them, after all this, many days, upon the injunction bond. It does not require authority to prove that the only judgment which can be rendered against a party upon turning him out of court is tlie judgment for costs. If yon wish more to do with him, you must of course let him stay in court, that you may there meet him and effect your object. This is true generally but more especially of this species of judgment. A dissolution of an injunction can only take place interlocntoriiy or finally. In the former way upon motion, in the latter upon final healing; but in either case while tlie petitioner is yet in court. It is like a defendant (pleading in reconvention) non grossing ihe plaintiff, dismissing the suit, refusing to let it be reinstated, aud the court sustaining him in that refusal, and then giving an affirmative judgment in favor of the defendant on his plea after tlie, plaintiff is doubly out of 'court.
    
      
      J. P. Henderson and J. M. Ardrey., for defendant in error.
    I. The defendant in error contends that there was no error in the court in rendering a judgment of nonpros, against the plaintiff "Wright, which was for the costs of suit and a correct judgment that far.
    II. The judgment upon the injunction bond was correct against tlie principal and sureties, and was authorized by tlie statute'under which the bond was executed. Tlie non-suit operated as a dismissal of the bill, which operated a dissolution of the injunction when there was a forfeiture. (Huston v. Berry, 3 Tex. R.; Hart. Dig., art. 1602.) The statute regulating injunctions does not require that notice should bo given to the sureties in order to authorize the court to render judgment thereon. (Janes v. Beynolds, 2 Tex. R., 250.)
    IH. It is suggested by defendant in error that there are not two final judgments in tlie 'cause. Tlie judgment of non-suit with the costs is not a final judgment whicii adjudicates anything between the parties. Tlie dismissing the petition and dissolving the injunction is the final judgment in the case, and is, the consequence of the non-suit: and tlie judgment upon the bond is tlie consequence of the dissolution of the injunction.' (Warren®. Shuman, 5 Tex. R., 441.)
    TV. In the affidavit made by Lewis, one of the sureties, there is no sufficient exeuse shown for the non-attendance of the plaintiff himself or his attorney to have authorized the interposition of the court, or that tlie facts upon which the motion was made were anything more than his more belief on the matter. The absence of an attorney from court is not a sufficient ground for a continuance, aud of course not to set aside a non-suit.
   WHEELER, J.

In respect to the first and second grounds of error assigned it is only necessary to say that we see nothing in the ease to exeuse the plaintiff from the necessity of appearing and prosecuting his suit, or to prevent the court fiom dismissing it for the want of prosecution, or to entitle the plaintiff to have it reinstatad’after it had been so discussed. These points are deemed too clear upon the facts of the case to require illustration.

But the remaining objection to the judgment is not so clear for the appel-lees.

The case iiad been dismissed for the want of prosecution. The defendant bad elected to consider the plaintiff out of court and thereupon to take a final judgment against him, “that he take nothing by his petition’’and that the defendant “go hence” &c.; and when the plaintiff sought to reinstate himself in court, his right to do so was successfullj’’ resisted by the defendant. Could the defendant, after this final disposition of the case, take a judgment against tlie plaintiff in that case? We think not. ’When final judgment liad been rendered adjudging the parties out of court, without having first reinstated tlie case except for the purposes of such an application, jurisdiction of tlie parties for all the purposes of that case, direct or collateral, was at an end.

The 154th and 156th sections of tlie act of 1846 (Hart. Dig., p. 495) are to be taken together; aud they authorize judgment upon tlie bond upon the dissolution of tlie injunction. The former is consequent upon and immediately connected with tlie latter. When, on tlie 3d day of May, tlie court proceeded to dissolve an injunction and dismiss a case whicii was not before it, having already been dismissed on the 24th of April, its action was coram non judice and void. The injunction was dissolved of course when tlie case was dismissed for tlie want of prosecution. To have authorized the judgment last rendered, tlie court must first nave reinshited the ease. Then, if tlie petition showed no equity, or if the answer repelled the case made by the petition, or if tlie plaintiff had abandoned his complaint, tlie defendant might have had the injunction dissolved,' bis judgment against the obligors on tlie bond, aud tlie petition dismissed. But surely the defendant having obtained a legal advantage over his adversary, could not hold on to that advantage, denying the latter tiie opportunity of being- heard to establish ills case, and yet claim to be heard and to take a Anal judgment against him. If lie would have had the judgment of tiie law on the bond, he should have done justice by consenting- to have the case reinstated. It was inequitable and against law thus first to simo tiie door of justice against the plaintiff and then proceed to take judgment against him.

Noth 75.—See Cochrane v. Middleton, 13 T., 275; Foster v. Martin, 20 T., 118; Aldridge v. Mardoff, 32 T., 204.

The judgment last rendered must be reversed, and the proceedings subsequent to the overruling of the motion to reinstate the case must be set aside and annulled.

Ordered accordingly.  