Edrington v. Allsbrooks

21 Tex. 186

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Hemphill, Ch. J.

The petition for injunction was verified by the proper person. The Statute of 1846 (Art. 1597, Hart. Dig.) declares that the petition shall be verified by the oath of the party, and unless there had been further provision, it might have been doubted whether the attorney, though fully > cognizant of the facts, could by his oath have satisfied the law. But the Act of January 11th, 1856, gives to the affidavit made by the attorney the same force and effect as if made by the principal, and is substantially an addition to the provision cited from the Statute of 1846.

If the petition had not been verified at all, the Court might, on final hearing, have decreed an injunction. Had there been no verification, the plaintiff might not have. been entitled to the writ during the pendency of the proceedings, but on final hearing the grant or refusal of injunction, depending upon the merits of the cause, and not upon the oath of the party, the want of the oath would be no ground for the reversal of a final decree or grant of jurisdiction. (Eccles v. Daniels, 16 Tex. R. 136.)

The objection that the material facts arc not stated in the affidavit in positive terms cannot be sustained. The proceedings had before the Justice (as detailed in the petition) show that the judgment, for want of legal service on the defendant, was void ; and his attorney swears positively that the facts, as deduced from an examination of the papers, in relation to the service and return, and others stated from his own knowledge, are true. This is deemed sufficiently positive. The jurat not only avers the truth of the facts, but shows how the truth was ascertained.

Nor ought the judgment to be disturbed on the third ground assumed by the plaintiff in error.

The judgment, as given by the Magistrate, was wholly void.

A suit against absent persons is essentially of an ex parte character, and at the very least plaintiffs should strictly comply with the rules of procedure before judgment. Notice by publication is, at best, but a miserable substitute for personal service, but if this has not been given, the utmost equity that could be claimed by a plaintiff in such judgment was allowed in this case, viz: the perpetual injunction of the void proceedings, and a decree for the sum really due from the defendant to the plaintiff.

A debtor who seeks an injunction against, a void judgment is not obliged to bring the money into (Jourt before he can claim its interposition. The judgments, rendered by the Magistrate against-the garnishees, rest for their basis on the Magistrate’s judgment against the defendant. That being void, the others fall with it, and the plaintiff cannot claim that they should in effect be revived, and held as security for the payment of the debt.

Judgment affirmed.