D. F. Connolly Agency, Inc. v. Popejoy

CONNER, C. J. This is an appeal from an order of a county court perpetually .enjoining a judgment against Whit Popejoy, sheriff of Limestone county, Tex., and Z. Anglin and Dan Parker, sureties on his official bond, for the sum of $197.47. The judgment was in favor of D. F. Connolly Agency, Incorporated. It is recited in the pleadings that D. F. Connolly Agency, Incorporated, had instituted a suit in the justice court of Tarrant county against the Bradford Supply Company, and in said court took a judgment for principal, interest, and costs, amounting to the total sum of $197.47; that from this judgment the Bradford Supply Company appealed to the county court “as required by law,” in which latter court D. F. Connolly Agency, Incorporated, took a default judgment on appearance day of the county court; that upon the judgment of the county court an execution was placed in the hands of Whit Popejoy for service, which he refused to levy “without an indemnity bond,” which D. F. Connolly Agency, Incorporated, “refused to furnish”; that “while the negotiations were pending for the indemnity bond” the Brad *832 ford Supply Company sued out a writ of er-1 ror and “filed its petition and supersedeas bond as tbe law required.” It is further recited that “immediately prior” to tbe per-1 feeting of tbis writ of error, counsel for tbe D. P. Connolly Agency, Incorporated, filed a motion in tbe county court citing Wbit Pope-joy and bis sureties to appear and show cause wby execution bad not been served and prayed for judgment against those parties wbicb the court granted in tbe sum of $197.-47. It was alleged that this motion was set down and heard and judgment entered after tbe writ of error bad been perfected. i i No appeal seems to have been perfected from tbe judgment upon tbe motion so stated, and tbe present action is one in wbicb said sheriff and bis sureties sought to enjoin tbe judgment against them, rendered upon tbe motion referred to. As already stated, tbe prayer for tbe writ of injunction was granted and tbe injunction made perpetual, and it is from tbis judgment perpetuating tbe injunction that tbe present appeal has been prosecuted by and in behalf of D. P. Connolly Agency, Incorporated. We agree with appellant’s general propositions that a judgment valid on its face will not be set aside or enjoined in a new suit for that purpose without a showing of equities in his favor and without a showing of sufficient excuse why such equities were not presented in tbe suit prior to tbe rendition of the judgment; and also with the further 1 contention that tbe equitable remedy of injunction is not available as a substitute for the legal remedy of appeal. We will not therefore attempt to discuss or determine whether the appellee sheriff was justified in refusing to levy the writ of execution in his hands because of the refusal of the plaintiff in the judgment to give him an indemnity bond, or because of any other defensive matter not presented in the present action and that might have been presented in the proceedings on the motion against the sheriff and on an appeal from the resulting judgment. It is well settled, however, that a judgment void on its face may be enjoined at any time in an independent action without resort to the remedy of appeal. But the record before us fails to contain a copy of the judgment enjoined, and there is no statement of facts presented showing the tenor or effect of such judgment. The burden is undoubtedly upon appellant to show reversible error, and we do not from the record feel authorized to say that the judgment enjoined by the lower court was valid on its face, in the absence'of a copy of the judgment and of a statement of facts showing its tenor and effect. The judgment from which the appeal is prosecuted imports the contrary conclusion, the rule being that all presumptions are in favor of the judgment. Moreover, it is statutory with us when an execution has 1 i been issued, and a supersedeas bond after-wards is filed and approved within the time prescribed by law, that all further proceed-i ings under such execution are suspended. Rev. Civ. Statutes 1925, art. 3772. It affirmatively appears from the verified petition for the writ of injunction that the judgment upon the motion was rendered after an appeal with supersedeas bond had been taken from the judgment by virtue of which the execution issued, and appellant nowhere seeks to deny this fact, and this fact must be assumed from the judgment to have been found by the court below. It would seem, therefore, that action upon the motion was immediately suspended and that no further proceeding for the enforcement of the judgment appealed from was authorized, for the summary remedy of enforcing the execution of a judgment by a motion authorized by article 3825, Rev. Statutes of 1925, is cumulative and, as in case of an execution, dependent upon the vital force of the judgment. The record fails to show the result of the appeal by the Bradford Supply Company from the judgment against it in favor of the D. F. Connolly. Agency, Incorporated, but we note that that judgment was affirmed on April 29, 1925, by the San Antonio Court of Civil Appeals, reported in 272 S. W. 519. Presumably the judgment of the Court of Appeals was against the Bradford Supply Company and the sureties on its supersedeas bond, and nothing in the record before us tends to show that such judgment cannot be collected, or has not in fact already been collected. Therefore, no loss or injury to the D. F. Connolly Agency, Incorporated, is apparent. Upon the whole, we conclude that, for the reasons stated, the judgment below must be affirmed.