Long v. Smith

39 Tex. 160

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinions

Walker, J.

This was a proceeding by injunction to restrain the collection of a judgment rendered in the County Court of Washington county.

The prayer of the petition was based upon the allegation that Long, the plaintiff, had appealed from the judgment of the County Court to the District Court, and that his appeal had been erroneously dismissed. The remedy by injunction is granted by courts of equity where the courts of law cannot give relief. Ho case of this kind was made out, and the injunction was improperly granted; if improperly granted, it was properly dissolved. If the plaintiff had suffered wrong in the County Court, he had his remedy by appeal, or certiorari. H he was aggrieved by the judgment of the District Court, he had his remedy by appeal to the Supreme Court. If he has neglected or misused his ordinary remedies he is not entitled to the extraordinary remedy, by injunction.

It is by no means manifest to us that the appellant would be entitled to relief, even were the case retried upon its merits. There was certainly no error in permitting the intervenor Swearingen to recover judgment in his own name. (See Heard v. Lockett, 20 Texas, 162; Price v. Wiley, 19 Texas, 142.)

The judgment of the District Court is -affirmed.

Affirmed.

Walton & Green and J. D. & D. C. Giddings, on motion for rehearing, cited Herndon v. Bremond, 17 Texas, 434; Spencer v. Kinnard, 12 Texas, 186; Kerr on Injunction, 4 and 6; Thompson v. Chareau, 7 Mart. La., N. S., 334; Smalley v. Taylor, 668, and Clamageran v. Bucks et als.. 4 Mart. La., 487; Bone v. Walters, 14 Texas, 566.

Sales & Bassetts, for Swearingen, cited Windisch v. Gussett, 30 Texas, 744; Wallerath v. Kopp, 31 Texas, 359; Rotzein v. Cox, 22 Texas, 62; Smith v. Ryan, 20 Texas, 661; McNeill v. Halmarck, 28 Texas, 157; Robinson v. Sanders, 33 Texas, 774; Price v. Wiley, 19 Texas, 142; Heard v. Lockett, 20 Texas, 162; Eccles v. Hill, 13 Texas, 65; Chandler v. Fulton, 10 Texas, 2; Hancock v. Devine, 17 Texas, 369; Smith v. Cheatham, 12 Texas, 37; Mays v. Forbes, 9 Texas, 436.