Jones v. Curtis , 56 Tex. Civ. App. 181 ( 1909 )

The Martin Hoyt Company of Atlanta, Georgia, filed suit against S. J. Curtis in the Justice Court on the 12th day of February, 1909. Upon the same day service was had upon Curtis. On March 1st, the regular appearance day of the court, judgment by default was rendered against him for $39.50. On March 9th, upon motion of Curtis's counsel without notice to the Martin Hoyt Company, the justice set aside the default judgment. On March 11th, on motion of the plaintiff, the justice of the peace made an order in the case on his docket in substance withdrawing the order granting the new trial and reinstating the judgment of March 1st. Appellee S. J. Curtis filed his petition for injunction in the District Court on March 29, 1909, against Jones, justice of the peace, and Martin Hoyt Company, a foreign corporation, plaintiffs in judgment. Notice of the petition was duly given to said Jones and to R. R. Owen, attorney for said Martin Hoyt Company, "to show cause, if any they have, why the relief prayed for be not granted." The hearing upon the application for injunction was had before the honorable district judge, in open court, on April 2, 1909, and judgment entered granting an injunction.

The trial court was of the opinion that no execution could legally issue on either the judgment of date March 1, 1909, or March 11, 1909. He seems to have been of the opinion that the justice of the peace had the right to render a legal judgment on March 11th, but that upon setting aside his order granting a new trial he should have proceeded to try the cause, but could not reinstate his judgment of March 1st. The correctness of this ruling is now before us for our consideration. The statute provides that where a judgment is set aside the cause shall be continued until the next term of court unless otherwise agreed by the parties with the consent of the justice. (Art. 1655, Rev. Stats. of 1895.) It is held that this statute does not continue the cause by its own operation, but is only a direction to the court. That if it had the effect to continue the cause this would not deprive the court of its inherent power to set aside the continuance during the term and trying the case without notice to the opposite party. That opinion also holds that the term of the Justice Court continues during the month. Cohen v. Moore, 101 Tex. 45.

While we do not agree with that opinion, we are governed by the decisions of the Supreme Court and compelled to follow its rulings. It seems to us that the statute having authorized the justice to grant a new trial at any time within ten days after judgment, it logically follows his judgments become final and he loses control over the same, except to enforce them, if not set aside within ten days. (Art. 1652, Rev. Stats.; Jones v. Collins, 70 Tex. 752; Carter v. Van Zandt,75 Tex. 286; Odle v. Davis, 35 S.W. 721.) The ruling in the case cited leaves room for great abuse, in that a party to a cause in the Justice's Court may induce the justice to change, modify or set aside his judgments or render a different judgment without notice to the other side at any time during the month, and litigants in these courts can not definitely determine until the end of the term whether the judgment as first rendered is to stand as the judgment of the court.

Under the ruling in the case cited, Justice Jones had the power, the term of court not having terminated, to set aside the order granting the new trial and to proceed to try the case, and, the case having been tried by him without a jury, he had power to render judgment without again hearing the evidence. (Blackburn v. Knight, 81 Tex. 331; Mitchell v. Mitchell, 84 Tex. 306; Taylor v. Gribble, 33 S.W. 765.)

The trial court, as we understand the record, so held, but further held that the justice did not render such judgment as will furnish the basis of or support an execution. The orders on the justice's docket, as taken from appellant's brief, are as follows:

"The Martin Hoyt Company v. S. J. Curtis, suit upon an itemized account for $39.50, filed February 11, 1909, citation issued February 12, 1909, returnable to the March term, A.D. 1909. Judgment by default March 1, 1909. This day this cause came on to be heard, the plaintiff appeared in open court by the attorneys and announced ready for trial. But the defendant came not but wholly made default, and it appearing to the court that the defendant being duly cited according to law, that plaintiff is entitled to judgment by default. It is therefore ordered, adjudged and decreed by the court that plaintiff, The Martin Hoyt Company, do have and recover of and from the defendant, S. J. Curtis, the sum of $39.50, together with all costs of their suit, for all which let execution issue. It is further ordered, adjudged and decreed by the court that the officers of the court do have and recover of and from each party of suit their costs as it by each accrued, for all which let execution issue." "Judgment entered and recorded this first day of March, 1909. T. P. Jones, J. P."

"Judgment set aside by the court upon motion by the defendant this ninth day of March, 1909. T. P. Jones, J. P."

"Order of court setting aside judgment withdrawn and judgment sustained this March 11, 1909. T. P. Jones, J. P."

In the case of Clay v. Clay, 7 Tex. 258, in speaking of the sufficiency of justice's proceedings, it was said: "Great liberality and indulgence are extended to the proceedings of justices of the peace, who are supposed not to be skilled in the forms of judicial proceedings observed in courts of record. If their proceedings are intelligible and attain the ends of substantial justice, they are generally sustained." Entries of judgments in Justice's Courts have been held sufficient in form as follows: "Defendant came forward and acknowledged judgment." Wahrenberger v. Horan, 18 Tex. 57. "Defendant acknowledged judgment for principal, interest and costs of suit." Davis v. Rankin, 50 Tex. 285. "Judgment for plaintiff." 12 Texas Civ. App. 63[12 Tex. Civ. App. 63]. The proceedings in Justice Jones' court are sufficiently intelligible to tell what judgment was rendered.

The meaning of the order of the 11th of March is that the justice withdraws his order granting defendant a new trial, and on that day sustains the judgment rendered by him on March 1st, in favor of Martin Hoyt Company. The legal effect of this order is to render judgment for Martin Hoyt Company against defendant, Curtis, for the same amount as the judgment of March 1st, to take effect March 11th. While Curtis was not present at the time the order of March 11th was entered, he had notice of it during the term and made no attempt to have it set aside or to prosecute an appeal. Before the close of the term he filed his petition for an injunction, and shows no sufficient excuse for his failure to move for a new trial or to appeal.

The term of the Justice's Court not having terminated when the injunction was applied for, appellee could then have moved for a new trial, the judgment being at the time under the control of the magistrate. (Bryorly v. Clark, 48 Tex. 345; Hamblin v. Knight, 81 Tex. 351.) Thus, it is seen that appellee had an adequate remedy by motion for new trial or appeal. Before he could resort to equity he was required to show that he had exhausted his legal remedy. (Nevins v. McKee,61 Tex. 412; Johnson v. Templeton, 60 Tex. 238 [60 Tex. 238].) He was required to show that he had a good defense to the cause of action and that he was prevented from making the same by the fraud, accident or acts of the opposite party, and that he himself was free from fault or negligence in not having presented the same. But appellee contends that it being doubtful whether he had the right of appeal or to apply for certiorari from the order of March 11th, and it being uncertain whether he had an adequate remedy at law, the district judge in the exercise of his equity jurisdiction properly granted the writ of injunction. We do not concur in this contention. The remedy of appellee by motion for new trial was neither doubtful nor uncertain. The petition failed to show that he had exhausted his legal remedy and was therefore defective. (Bryorly v. Clark, supra.)

The judgment is reversed and the injunction dissolved and the cause dismissed.

Reversed and dismissed.