Windisch v. Gussett

30 Tex. 744

• Court: Texas Supreme Court
• Decided: January 15, 1868
• Status: Published

Opinion

Morrill, C. J.

On 2d April, 1867, plaintiff applied for, and obtained from the judge of the district court, an injunction to restrain the sheriff of Eueces county from executing a fieri facias issued by virtue of a judgment rendered at the fall term, 1866, of the district court of said county, against him, and in favor of Gussett, for $471 73, in gold or silver, or its equivalent in United States currency.

The causes for injunction were:

1. That there was no legal service.

2. That the judgment should have been for legal-tender notes of the United States.

.3. That by virtue of the acts of 1866, an execution could not legally issue.

At the subsequent term of the court, on motion of the defendant, Gussett, the judge dissolved the injunction, and the plaintiff has appealed from the judgment to this court.

With regard to the first cause assigned for an injunction, that there was no legal service, it is supposed that the court adjudicated upon that fact before the judgment was rendered; and should the court have erred, the statute provides a method of having the errors of the district court revised. Where there is a statutory and ordinary remedy for the correction of a real or fancied error, an extraordinary remedy will not obtain.

The second cause, that the judgment calls for a certain amount of dollars in gold or silver, or its value in legal tenders, can be disposed of in the same way and manner, if it should appear that a revision is necessary. If the judgment should call for a specific article, whether the article were a given number of ounces of gold or silver of a certain fineness, or its value in the currency of the United States, it would present an entirely different case from the one under consideration. As the judgment specifies the number of dollars and cents adjudged to be recovered, what follows may be considered surplusage, because the same number of dollars and cents of the currency of the United States would be full payment.

The third cause assigned for injunction is the only one mentioned for which this extraordinary writ could be obtained.. This brings the constitutionality of what is known as the stay-law before the court for adjudication.

It is not stated when the liability of plaintiff, upon which the enjoined judgment was based, accrued, and we must presume in favor of the correctness of the judgment of the district court, and that the violated contract was made before the stay-law was enacted, and at a time when the laws in force required an execution to issue immediately after adjournment of the court upon all its judgments.

Assuming such to be the facts in the case, for the reasons given in the case of Jones v. McMahan, [ante, 719,] decided at this term of the court, the judgment of the court dissolving the injunction was not erroneous, and it is therefore

Affirmed.