Willis v. Gordon

22 Tex. 241

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

Opinion

Roberts, J.

Plaintiff in error complains that, having sustained his injunction, as to the judgments in the Justice’s Court, on account of the want of service of process, it was error in the District Court to render judgment on the notes set up in defendant’s answer, as the notes upon which the justice’s judgments were rendered.

The court acted correctly, on the principle well recognized in courts of equity, that having acquired jurisdiction of the cause, the full merits of the controversy, as presented by either party, would be adjudicated. This was decided in a similar case at this term. (Bourke v. Vanderlip’s Ex’rs et al., supra, 221.) The notes were fully set out in the answer, and alleged to he the notes upon which the judgments were rendered, thereby correcting the clerical mistake made by the justiee in the date of the notes. And the cause being submitted to the judge, he did not err in concluding that they were the same notes, the only variance being, that the notes bore date on the 19th of October, 1855, which the justice mistook for the 17th.

Had the plaintiff tendered the money really due on the notes, before suing out his injunction, he would have been entitled to recover the costs of the District Court, as well as those of the Justice’s Court. Hot having done so, he has no right to complain that he was relieved only of the costs of the Justice’s Court. Judgment affirmed, with damages.

Judgment' affirmed.