Horton v. Jones

1 Dallam 466

• Court: Texas Supreme Court
• Decided: January 15, 1842
• Docket: No. XII
• Status: Published

Opinion

HUTCHINSON, Justice.

It is not necessary farther to state the 'case than that Horton filed his bill to enjoin a judgment obtained by Jones against him. Jones answered, denying the equitable matters contained in the bill; but not reserving exceptions by way of demurrer to any insufficiency in the bill in not laying a ground for equitable interposition by showing causes that prevented defense at law. The answer simply negatives the, facts constituting the equity in chief and puts no grounds of demurrer.

The answer was filed a few days before the term at which the case was decided, and plainly too late to enable the plaintiff to get the witnesses in ihe same county, or the depositions of more distant witnesses in support of the bill and in opposition to the answer. We do not go so much on the affidavit for a continuance, for we have not yet decided whether the refusal of a continuance may be assigned for error, but the affidavit evinces the wish of the plaintiff to have the case stand over in order to proof, and it were due to justice to permit it.

When an answer is perfectly responsive in a bill for injunction and in negation of its equity, it is proper to dissolve the injunction; but then ¡the judgment—plaintiff must be required under the statute to give a refunding bond, if the complainant wish the bill to stand over as an original bill. Here the case ought to have been continued to enable the plaintiff to prove, if he might, the matters of his bill denied by the answer, and the respondent should have been ordered to give the refunding bond as a condition precedent to obtaining the benefit of his judgment at law. Let the decree be reversed and the cause be remanded, with permission to the parties to take testimony.

Reversed and remanded.