This suit was brought by the appellant to enjoin the collection of a judgment for money which was rendered against him in the District Court of Milam County on the 6th day of January, 1874. *Page 354
The material facts appear in the report of the cause on a former appeal, except that on the trial from which the present appeal was taken it was agreed that the term of the District Court at which the judgment complained of was rendered was still in session when the petition for injunction was filed.
The ground, in addition to a meritorious defense, upon which it was sought to enjoin the collection of the judgment was that the court that rendered it had not acquired jurisdiction over Hamblin, because he had never been served with citation nor voluntarily appeared, notwithstanding the sheriff had returned a citation for him as duly served and an attorney had filed an answer for him. He charged that the return of the officer was untrue, and that the appearance of the attorney who filed the answer was without his knowledge or consent.
The petition for injunction charged, and it was proved at the trial, that Hamblin did not live in Milam County, and did not know that a judgment had been rendered against him until after more than two days had expired from the date of its rendition.
In the view taken by us of the cause the only question that it becomes necessary to consider is, Was the proceeding by a suit for an injunction proper when the remedy by a motion for a new trial was still open?
The question was decided by this court in the case of Bryorly v. Clark, 48 Tex. 345. In that case, as in this, a petition for an injunction against the enforcement of a judgment was resorted to during the term of the court at which the judgment was rendered, and after the expiration of more than two days from its date.
In the opinion it is said: "The petition was defective, for it does not attempt to show any excuse for not making a motion for new trial embodying in it the same matter, unless, indeed, such excuse is to be found in the fact that a motion for new trial, setting up only a part of the same matters imperfectly, and unsupported save by the affidavit of the party, had in fact been made and overruled. The judgments of the court are under its control during the term, and a second motion for a new trial may be allowed. It is true, as contended by appellant, that equity may grant a new trial after a motion for a new trial has been overruled. But when the more direct remedy of a second or amended motion is equally available there is no excuse for resorting to the circuitous remedy of a separate suit. The petition, as a petition for a new trial, fails to show a sufficient excuse for not having made the same showing by motion."
The correctness and applicability of this opinion was recognized by this court in the opinion rendered on the first appeal of this cause 60 Tex. 40.
The petition for an injunction filed in this cause is substantially a suit for a new trial. *Page 355
One against whom a judgment has been rendered without notice may no doubt obtain relief from it by injunction, notwithstanding it may appear from an official return or by the recitals in the final judgment that he had been duly served with citation or that he had voluntarily appeared either in person or by an attorney. Such relief by injunction will not be administered when the party has an adequate remedy at law, nor as a general rule when he has an opportunity to make a motion for a new trial at the term at which the judgment was rendered. In every case where such relief is sought by injunction it should be done without delay, or if from any cause delay exists it should be accounted for and excused, in addition to which it must be shown that the party has a meritorious defense to the action. If relief against such a judgment is sought during the continuance of the term at which it is rendered, and there exist any circumstances making an application for a new trial an insufficient or less effective remedy than a separate suit would afford the party, upon alleging such facts he should be allowed to proceed by a separate suit and apply for an injunction instead of being confined to a motion for a new trial.
In this case nothing was alleged by the plaintiff tending to show that his remedy by a motion for a new trial was not adequate. His petition excused his omission to seek that remedy by alleging that the term of the court had adjourned before he could apply for relief, after being informed that the judgment had been rendered. If he had proved that allegation this suit would have been proper.
We feel constrained, however, by the decisions of this court to hold that when it was admitted that the term of the court at which the judgment was rendered had not adjourned when the original petition was filed the court did not err by charging the jury to find for the defendant.
The judgment is affirmed.
Affirmed.
Delivered June 12, 1891.