Kendrick v. Rice

Wheeler, J. The grounds on which the injunction was sought are: [259] 1st. The supposed illegality of the execution, in that it included the plaintiff in error with the defendants in the judgment of affirmance. 2nd. The supposed illegality of the levy, in that it was made upon improved land of the plaintiff in error, when the other defendants had property, which was first liable, and should have been first taken in execution ; and in that the property was pointed out by the attorney of the defendants in error, without notice to the plaintiff, and without giving him an opportunity to point out property. In support of the first ground, wc are referred to our Opinion, in the case of Turner v. Smith, (9 Tex. R. 626.) But it is to be observed, that, in that case, the defendants in the original judgment, not included in the execution then before the Court, having died, the question was, whether they were properly omitted in issuing execution? It was held that they were : because, execution could not issue against their estates ; their liability could only be enforced in the due course of administration in the Probate Court. Whether, if living, they should have been joined, was not the question then before the Court. It will not be claimed for the plaintiff in error, that Ms failure to join in prosecuting the former writ of error, had the effect to discharge him from his liability as a principal judgment debtor. The judgment remained in full force as to him. Upon the affirmance of the judgment, the plaintiff was entitled to have execution of it against all the judgment debtors. This could only be either by several executions, one against the plaintiff in error alone, upon the original judgment, and another against his co-defendant and the sureties of the latter in the judgment of affirmance, or by one'joint execution against all: and the most convenient and less expensive course, was to include all in one execution, expressing therein distinctly the several liability of each. (Martin v. Rice et al, supra.) But the legal fact, which is material to be here considered, and which is a complete answer to the supposed equi [260] ty of this party, is, that he was liable to execution, and it was rightly issued against him upon the original judgment; and he cannot have sustained any injury, or have any equitable ground to claim the interposition of the Court by injunction, because the other defendants were joined in the execution.— That can in no way have operated to his prejudice, and can afford him no ground of complaint. Nor had he cause of complaint, that the execution may not have sufficiently distinguished his liability from that of the other defendants ; since, by reason of the credit allowed, for money paid, as we must suppose, by the other defendants, as he does not profess ever to have paid anything, it was for a less sum than he was legally liable for upon the judgment. He does not claim to have made any payment, nor that the judgment against him is entitled to any credits: and the execution did not authorize or direct more to be collected of him than, from his own statements, he was legally liable to pay. There was, therefore, nothing to authorize an injunction, in the issuing of execution against the plaintiff in error, in the form and manner of its issuance. The complaint, as respects the levy, is equally without merits. The plaintiff avers that he resides in a different county from that in which the judgment was rendered, and to which the execution issued ; and he does not pretend that he had any agent or attorney in the county, authorized to point out property, ■ or that he had any other property in the county, subject to be taken in execution. The officer, in charge of the execution, was not authorized to go out of his county to find property of the defendant, nor was he required to do so to find the defendant, and afford him an opportunity of pointing out property. (Cook v. Garza, 13 Tex. 431.) But the complaint is, that the officer did not proceed first to make the money off the other defendants ; who, it is alleged, had personal property, unimproved lands and slaves in the county.— Who of the other defendants is intended, does not appear by the petition ; but it does appear by the answer of the officer [261] which was before the Court, and uncontroverted, when the final judgment was rendered, that it must have been the sureties in- the judgment. For the officer states that the other principal defendant in execution, had no property in the county, within his knowledge, whereon to levy; all his property having been previously sold or taken in execution. It is evident from the pleadings and exhibits, on which the case was submitted to the decision of the Court, that the object sought by the injunction, was to compel the sureties of a co-defendant to satisfy a judgment in which the complainant was a principal debtor. And nothing can be clearer upon principle, than that a Court of equity will not aid a party in consummating such a purpose. It will not interfere to prevent the making of the money of the principal in the judgment, whatever property those whose liability is but as sureties may have, or whatever may be their ability to satisfy the judgment. One liable as a principal, cannot ask the aid of the Court to compel the creditor to have recourse upon a surety; whatever majj be the right of the creditor, if he sees proper to exercise it. The plaintiff, therefore, had no ground for an injunction on account of the levy upon his improved land j when he has not shown that there was any other property subject to be taken in execution without resorting to those whose liability was that of sureties only. The officer being authorized to make the levy, under the circumstances, it is immaterial whether the property was pointed out by the plaintiff's attorney or not. He might adopt the plaintiffs' designation, or make the levy without it. (Martin v. Rice et al supra ; Bryan v. Bridge, 6 Tex. 137.) The present was an injunction to restrain the collection of money : and the judgment was rightly rendered against the principal and sureties in the injunction bond. (Hart. Dig. Art. 1602, 1603.) We are of opinion that there is no error in the judgment and it is affirmed. Judgment affirmed.