Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 265
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1884.] SHARP Y. SCHMIDT & ZEIGLER. 266
Opinion of the court.
If either of these grounds is shown by the record to have existed,
the injunction was properly dissolved.
It is fully established by our own decisions, " that notwithstanding
an illegal writ or service of process, a court of equity will not interfere
to set aside a judgment until it appears that the result will be
different from that already reached." Schleicher v. Markward, 61
Tex., 103; Kitchen v. Crawford, 13 Tex., 516. To make this appear
the petition should aver matters which amount to a good defense to
the original action. The nature of the defense must be given, so
that the court for itself may determine the conclusion of law as to
whether or not it is a good defense, and would produce a different
result if proved upon another trial. The plaintiff's oath to such a
conclusion is not sufficient.
A defense, too, might in some sense be good, i. e., sufficient to
defeat the action, and yet not of that class of defenses to let in
which a judgment will be set aside. It has always been the rule
that when a judgment is sought to be reopened for any cause, in
order to permit a defense to be made, which the defendant was prevented
from proving upon the trial inr which the judgment was
obtained, the nature of the defense must be shown to the court.
Foster v. Martin, 20 Tex., 118; Contreras v. Hiaynes, 61 Tex., 103;
Johnson v. Templeton, 60 Tex., 238. The case of a judgment rendered
upon defective or illegal service of process is no exception to
the general rule.
The petition in this case merely stated that the plaintiff had a
good defense to the action in which the judgment was obtained.
The court having sustained a special demurrer on the ground that
the character of defense was not alleged, and the plaintiff, upon
leave for that purpose given, having declined to amend, the court
properly dissolved the injunction and directed execution to issue
upon the judgment temporarily enjoined.
It was not necessary to serve Solomon with notice of the amended
original answer filed May 15, 1884. The sureties upon the injunction
bond were practically parties to the suit, and liable to have any
judgment rendered against them which was authorized by the pleadings
and proof, at least to the extent of their bond. The extent of
their liability upon a mere dissolution of the injunction was ten
per cent. upon the amount released by the dissolution as damages
for delay. R. S., art. 2894. But by appropriate pleading in reconvention
on the part of the defendants, and proof of the necessary
facts, judgment might be given against them to the limit of their
liability upon their bond. Tex. & N. 0. R'y Co. v. White, 57 Tex., 135.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/287/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .