Halcomb v. Kelly

Walker, P. J. Com. App. There is no evidence in the case upon which can be predicated the judgment or decree perpetuating the temporary injunction which was granted. The statement of facts shows, in effect, that in a justice’s court the defendant Halcomb sued the plaintiff on an account for $10, against which Kelly pleaded in offset the $40 note which is set up in this injunction suit; that the jury found for Halcomb; that Kelly asked for a new trial because the jury “ ignored ” his offset and rendered judgment against him; that he then appealed to the district court, and gave bond for appeal. The plaintiff introduced in evidence the note, and testified as a witness that the justice informed him that no appeal could be taken from the judgment, because the amount of the same was not appealable. Clearly these facts furnish no ground for the interposition of the equitable remedy of injunction; a writ, the province of which is not to serve the purpose of a mere writ of revision and for the correction of errors. Hot only were the facts proven inadequate, but the petition itself was insufficient; it discloses no sufficient ground for the issuance of the writ. 1 High, on Inj., secs. 237-244. • An injunction to restrain the execution of a judgment of a justice of the peace will not be granted for error in the decision, where the party, through negligence, has failed to prosecute a certiorari, or where he has any other adequate and complete remedy. Fitzhugh v. Orton, 12 Tex., 5. In this case the plaintiff sought both remedies, but the judge did not grant the legal remedy, certiorari; and that by injunction is not supported in the petition by the averment of circumstances which entitle the plaintiff to that redress. At any rate, the evidence adduced on the trial totally failed to establish a basis for injunction. If the plaintiff, Kelly, had been entitled to the protection of injunction by reason of the alleged insolvency of Halcomb (which was not proven to be true), he having pleaded in offset the note which he held, it devolved upon him, in his petition for certiorari, to have rendered clear and apparent what had been the action of the justice and jury trying the case, in respect to the note thus pleaded. It does not follow that merely because he had before the trial filed the note with the justice, that therefore the verdict which the jury rendered was erroneous. It was the province of the petition to show [621] the error which would entitle the petitioner to the writ of certiorari. He had the opportunity to pursue and obtain legal redress, and if he failed to do so, equity does not relieve him against his neglect or failure. See Long v. Smith, 39 Tex., 160; Bills v. Scott, 49 Tex., 430. We are of opinion that there was no merit in the bill, and that it ought to have been dismissed. The plaintiff filed an amended petition which set up a new and distinct cause of action; it was an action of debt and foreclosure brought on the $40 note, and praying for foreclosure of the alleged lien upon a tract of land. We do not think that this amended petition can be allowed to support the original defective cause of action, so as thereby to prevent a dismissal of the original suit. The joinder, by amendment, of actions so various in kind as those of petition for certiorari, injunction, debt and foreclosure of lien on land, ought not to be encouraged by the courts, leading, as such a practice must do, to uncertainty and confusion. We think it would be an abuse of the privilege allowed to litigants to amend their pleadings under the direction of the court, and an improper exercise of the discretion of the court thus to sanction an amendment of the character of that which was permitted in this case. We conclude that the judgment ought to be reversed and the cause dismissed, [Reversed and dismissed. [Opinion delivered October 25, 1882.]