Cooper v. Walker

96 S.W.2d 847

• Court: Court of Appeals of Texas
• Decided: September 3, 1936
• Docket: No. 3532.
• Status: Published

Opinion

PELPHREY, Chief Justice.

On February 1, 1936, appellant filed suit in justice’s court for precinct No. 3, of Brewster county, seeking to recover the title and possession of a certain bay mare from appellee. Judgment was there rendered in favor of appellee and appellant took’ an appeal to the county court of Brewster county.

A trial on May 9th in that court resulted in a judgment for appellee- also, and, in the alternative, for the sum of $30 to be recovered of appellant and his bondsmen for the use of the mare in question.

On July 13th following, appellant filed his petition in the district court of Brewster county, seeking to enjoin the enforcement of the county court judgment and the issuance of execution thereunder. This petition was denied by the trial court, and this appeal resulted.

Opinion.

To entitle a party to relief in equity against a judgment of law, he must show that his situation is not due to his own-neglect or carelessness, 34 C.J. pp. 432, 433,, and it is not sufficient to show that injustice has been done by the judgment sought to be enjoined, W. T. Johnson et al. v. V. H. Templeton, Adm’r, 60 Tex. 238.

In the case at bar appellant' filed the suit and in so doing selected the forum where it was to be tried, and most certainly he should not be heard to say, in seeking equitable relief, that a court of equity should grant him relief on the ground that there were no allegations in that court as-to the value of the animal sought to be recovered, when the absence of such allegation was due to his own mistake or neglect.

The further contention of appellant that he was denied his right of a trial by jury because the trial court refused to submit his requested issues is without merit.

The court’s action might be properly attacked on appeal but certainly would not subject the judgment to collateral attack as-is here attempted.

The granting or denying of injunc-tive relief rests in a great measure in the-discretion of the trial court, and appellate courts will not revise the action of trial courts in such matters except where there-clearly appears an abuse of such discretion. No such abuse appears here, and the judgment of the trial court will be affirmed..