The above numbered and styled causes were presented together on oral argument, and will be decided and disposed of by filing a copy of this opinion in each cause. The *Page 267 parties will be designated appellant and appellee.
On October 2, 1931, appellant sued appellee in the county court of Williamson county, seeking to recover judgment on a verified account for $206.04, alleged to be due as overpayment of commissions on merchandise which appellee sold, or took orders for as appellant's salesman. On December 30, 1931, appellee answered, denying under oath the verified account of appellant; and by way of cross-action sought judgment against appellant on a verified account for $986.05, alleged to be due as underpayment of commissions on sales of merchandise. Appellant was duly served with citation on this cross-action, and the cause was set for trial January 2, 1932, but continued by agreement to the March and June terms, 1932; and was set for trial June 20th, at which time appellant requested a resetting for June 24th. Appellant failed to appear, and after a hearing, judgment was rendered for appellee, which recited and found that appellee owed appellant $169.04 on its account for overpayment of commissions; that appellant owed appellee $782.30 on his cross-action for underpayment of commissions due; and that the offsetting of these accounts entitled appellee to judgment for $613.26, with interest. The June term ended July 2, 1932, and on July 5, 1932, execution was issued on appellee's judgment, and the sheriff levied on certain property of appellant and advertised same for sale in satisfaction of the judgment. This concluded all proceedings in cause No. 7911.
On July 12, 1932, appellant filed a suit (cause No. 7925), in the nature of a bill of review to set aside appellee's judgment on his cross-action, alleging: (1) That the judgment was procured by the fraud, or breach of agreement of appellee's attorney to continue the case; and (2) that the judgment was not supported by any evidence; and as a meritorious defense to the judgment appellant repleaded its verified account. The petition further alleged the facts with regard to the issuance and levy of the execution in satisfaction of the judgment, and prayed that a temporary injunction be granted pending the hearing restraining the sale under the execution; and that upon final hearing the injunction be made permanent. Without notice or hearing, the trial judge granted the temporary injunction, upon condition that appellant file a bond in the sum of $1,500; which was done.
On July 14, 1932, appellant filed a motion asking that the property levied on by the sheriff be ordered returned to it, alleging that appellee was fully protected by the injunction bond; and without notice to appellee, or a hearing, the sheriff was ordered to return the property to appellant.
On July 29, 1932, appellee filed his answer in the bill of review suit, denying that the judgment had been obtained by fraud, or the breach of agreement of appellee's attorneys to continue the case; and alleged that the judgment was based upon sufficient evidence and was valid, that appellee had acquired rights under the judgment by causing the issuance and levy of the execution upon sufficient property to satisfy the judgment, that appellant wrongfully enjoined the execution sale, and wrongfully obtained a redelivery of the property by the sheriff under its motion representing that appellee was fully protected by the injunction bond filed. Appellee prayed for affirmative relief as follows:
1. That the judgment in the principal suit be declared valid.
2. That the temporary injunction be dissolved.
3. That judgment be rendered for appellee against the injunction bond and its sureties for the amount of the judgment in the original suit.
4. That judgment be rendered for appellee for the statutory 10 per cent. penalty for the wrongful issuance of the injunction.
5. That judgment be rendered for appellee on his cross-action on verified account for commissions due, in the event the court should determine that the judgment in the original suit should be set aside.
The pleadings in the original suit were read and considered as part of the pleadings in this case. With the issues thus joined by the pleadings, the case proceeded to trial on September 13, 1932, and the evidence was concluded the following day. The trial judge announced that he would not set the judgment aside for the fraud alleged. Appellant's counsel insisted, however, that appellant was entitled to judgment under the facts developed, and asked and was granted permission to submit authorities sustaining his contention by September 20, 1932; but on September 19, 1932, he filed motion to dismiss the cause at appellant's cost, and requested that appellant be permitted to take a nonsuit. Appellee contested the motion to dismiss or take a nonsuit, alleging that he was seeking affirmative relief, which prohibited the taking of a nonsuit, in that he was seeking to *Page 268 have the judgment, the subject-matter of the suit, declared to be valid; that he was seeking judgment on the injunction bond; and that he was seeking judgment for the statutory penalty for wrongful issuance of the injunction.
The trial court overruled the motion to dismiss or to take a nonsuit; and after taking the case under advisement, on September 23, 1932, rendered judgment as follows:
1. Denying the petition of appellant to set aside the original judgment.
2. Declaring, adjudging, and decreeing the original judgment to be a valid, subsisting, and enforceable judgment.
3. Dissolving the temporary injunction.
4. Decreeing and rendering judgment for appellee against the injunction bond and the sureties thereon for the amount of the judgment in the original suit; and further decreeing that the payment of this judgment would satisfy the judgment in the original suit, and that payment of the original judgment would in like manner satisfy this judgment; and that writs of execution or other process might issue on both or either judgment.
The principal question presented here concerns the action of the trial court in refusing to permit appellant to take a nonsuit at the conclusion of the evidence and before actual judgment was entered decreeing the original judgment sought to be set aside valid.
Appellant contends that in a suit in the nature of a bill of review to review and set aside a final judgment of the court entered at a previous term, (1) plaintiff is entitled at any time before the court announces its decision to take a nonsuit and have the case dismissed; (2) that in such suit no affirmative relief can be granted the defendant so as to deny the plaintiff the right to take a nonsuit; and (3) that in such suit the power of the court is limited to refusing the review, if the court denies the review.
We have reached the conclusion that appellant's contentions cannot be sustained. Article 2182 provides that a plaintiff, at any time before the jury has retired, or before the judge trying the case without a jury has announced his decision, "may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief." Article 2016 provides that, "where the defendant has filed a counter claim seeking affirmative relief, the plaintiff shall not be permitted, by a discontinuance of his suit, to prejudice the right of the defendant to be heard on such counter claim." These statutes have been construed as securing to a defendant the right to a hearing upon his claim for affirmative relief, whether by cross-action, plea in reconvention, counterclaim, or set-off, in the suit in which the claim for affirmative relief is pleaded. Short v. Hepburn, 89 Tex. 622,35 S.W. 1056. These statutes do not inhibit a plaintiff from taking a nonsuit in any event, where a claim for affirmative relief has been asserted by the defendant; but if he does so, and the defendant has a claim for affirmative relief, the defendant has the right to have the case remain upon the docket for the disposition of the claim for affirmative relief. Jackson v, Furst, Edwards Co. (Tex.Civ.App.)154 S.W. 243. In the instant case appellant did not ask that its suit alone be dismissed, but insisted that the entire cause be dismissed. This the trial court refused to do upon the grounds: (1) That appellee "is seeking affirmative relief by cross-action and plea in reconvention which would be lost by granting" the motion to dismiss or take a nonsuit; and (2) because appellee's "rights for affirmative relief would thereby be prejudiced." This action of the trial court is sustained by numerous authorities. Bailey v. F. Supply Co. (Tex.Com.App.) 287 S.W. 1090; Thomason v. Sherill (Tex.Civ.App.) 4 S.W.2d 304; Cornelius v. Early (Tex.Civ.App.) 24 S.W.2d 757, affirmed by Commission in 120 Tex. 335,39 S.W.2d 6; Thompson v. Gaither (Tex.Civ.App.) 45 S.W.2d 1106; 15 Tex.Jur. 243-246, § 10, and cases cited.
A second rule applicable in the instant case is stated in 15 Texas Jurisprudence, 246, as follows: "Where the pleadings of both parties involve the same subject matter upon which each seeks affirmative relief, the plaintiff may not take a nonsuit if it would materially affect the legal status of the subject matter of the suit or any party to it."
The subject-matter of this or any suit in the nature of a bill of review to set aside or to enjoin the enforcement of a final judgment is the validity of such judgment. Appellant alleged that the judgment was void, because of the fraud, or breach of agreement of appellee's counsel to continue the case. Appellee answered, denying the fraud, or agreement to continue, and alleged that the judgment was valid; that he had acquired rights under the judgment by causing the issuance and levy of an execution upon sufficient property to satisfy the judgment; that *Page 269 appellant had wrongfully enjoined the sale under execution, and had wrongfully obtained the possession of the property levied upon from the sheriff by its motion representing that the injunction bond fully protected appellee; and that appellant was insolvent. Appellee prayed that he have an affirmative decree declaring the judgment to be valid; that he recover judgment in the sum of the judgment sought to be set aside and the costs of the original suit against appellant and the sureties on the injunction bond for wrongfully issuing same; and that he recover judgment for the statutory 10 per cent. penalty for the wrongful issuance of the injunction. It is manifest from these pleadings that both appellant and appellee sought to litigate the same matter; and appellant could not by taking a nonsuit dismiss the entire case so as to prejudice the right of appellee to a hearing and judgment on his claim for affirmative relief. Thompson v. Gaither (Tex.Civ.App.) 45 S.W.2d 1106 (writ of error refused). On principle the case is controlled by the rule in trespass to try title cases, in which the defendant pleads not only not guilty, but also pleads and prays for affirmative relief to quiet title in himself to the land; and in which cases it is held that plaintiff may not take a nonsuit so as to deprive the defendant of a hearing on his claim for affirmative relief. Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427; Peck v. McKeller, 33 Tex. 234; Buster v. Bryant (Tex.Civ.App.) 60 S.W.2d 1043.
Nor do we sustain appellant's contention in this connection that the pleadings of appellee were merely defensive, or merely resisted recovery by appellant. The fact that pleadings are defensive in their nature does not mean that they cannot also be considered or used as a basis for affirmative relief, where the facts pleaded are sufficient to entitle the pleader to affirmative relief, and where such relief is prayed for. Thompson v. Gaither, supra; Jones v. Wagner (Tex.Civ.App.) 141 S.W. 280; Davis et al. v. Wichita State Bank (Tex.Civ.App.) 286 S.W. 584, 589. In the instant case appellant did not merely seek by bill of review to determine the validity of the judgment, but also sought and obtained an injunction restraining the enforcement of the judgment; and by motion tiled obtained a release of the property levied upon to satisfy the judgment. By his pleadings appellee not only sought to litigate the validity of the judgment and the rights he had acquired thereunder by the issuance and levy of an execution on sufficient property to satisfy the judgment, but also sought by affirmative pleadings to recover judgment against appellant and his bondsmen for the wrongful issuance of the injunction, the wrongful release of the property levied upon to satisfy the judgment, and the statutory penalty for wrongful issuance of the injunction; all of which matters of affirmative relief arose out of, or were incident to, or connected with, the suit of appellant, seeking by bill of review and injunction to set aside and to restrain the enforcement of the judgment. Both of these remedies sought to be invoked by appellant are equitable remedies; and manifestly equity would not permit appellant to bring its suit in the nature of a bill of review to determine the validity of the judgment, and obtain an injunction restraining the sale of the property levied upon to satisfy the judgment, and cause the release of the property levied upon under representation that the injunction bond fully protected appellee; and to then take a nonsuit, which would prejudice or deprive appellee of his hearing on his claim for affirmative relief to have the judgment declared valid so that his rights acquired by virtue of the execution levied on property to satisfy the judgment might be determined, as well as his right of recovery on the injunction bond, for all of which relief appellee affirmatively pleaded and prayed.
Nor do we sustain appellant's second and third above contentions, to the effect that in a suit in the nature of a bill of review, reviewing a final judgment entered at a former term of the court, no affirmative relief can be granted to the defendant so as to deny plaintiff the right to take a nonsuit; but that the power of the court is limited to refusing the review, if the court denies the review. The nature and extent of inquiry and relief in a suit in the nature of a bill of review is so well settled by the courts that a lengthy discussion is not necessary. The authority, 25 Texas Jurisprudence, 671-673, § 245, reviews numerous court decisions on the question presented, and from them announces the following rule:
"When a petition for equitable relief at a subsequent term is brought before the court, it is not contemplated that the cause shall be divided into two parts and tried by piecemeal, — one in which a decision is rendered setting aside the judgment complained of and the other in which there is a trial on the merits. But every issue arising on the merits must be disposed of on hearing the petition for relief, and the relief prayed for is *Page 270 either denied or granted in the one proceeding. The proceeding has all the incidents of a trial and cannot be disposed of in a summary way as if it were a motion for a new trial.
"The rule above stated is said to be founded on common sense and reason, for it would be useless to set aside one judgment when the principles of equity would require another adjudication of like import. All the issues can be conveniently tried in the proceeding and the equities of the parties adjusted as the facts demand. Furthermore, a multiplicity of suits is thereby avoided."
Supporting the text are the leading cases of Roller v. Wooldridge,46 Tex. 485; Humphrey v. Harrell (Tex.Com.App.) 29 S.W.2d 963; Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723; Overton v. Blum, 50 Tex. 417.
In Rasmussen v. Grimes (Tex.Civ.App.) 13 S.W.2d 959, affirmed (Tex.Com.App.) 24 S.W.2d 346, it was held that in a suit in the nature of a bill of review the court could re-examine the case on its merits and grant such relief as equity required.
In Camden Fire Ins. Co. v. Hill (Tex.Com.App.) 276 S.W. 887, it is held that in a case in the nature of a bill of review, the former case may be re-examined on its merits and retried; and such relief will be granted as is appropriate and warranted by pleading and proof "on the whole case." Or, if the trial shows that justice was accomplished by the former judgment, then it will be allowed to stand according to its import and thus be affirmed; and that the effect of such affirmance is to cut off and finally determine the matter in any way set up, or which could have been set up, in the "re-examination on the merits."
Under the foregoing settled rule the judgment rendered in the bill of review case (No. 7925) became the final determination of all matters, or the final judgment in both that suit and the former suit and judgment in cause No. 7911. It follows from this conclusion that the appeal by writ of error in cause No. 7911 should be and is hereby dismissed.
Appellant contends, however, that the judgment in the bill of review case (No. 7925) was erroneous because the court abused its discretion in denying appellant a trial by jury. The contention is not sustained under the undisputed facts, which show that the case was first set for August 15th, and reset by agreement September 13th. September 6th was appearance day, and counsel for both parties were present at the call of the docket, when the court announced that the case would be set for September 13th, which was a nonjury week, no jury having been requested; and then the court also announced that the week beginning September 19th would be jury week. This practice of thus setting cases for jury and nonjury week on appearance day had been uniformly followed by the court in disposing of cases, and the jury cases were accordingly set for September 19th.
On September 13th, the date set for trial, appellant requested a jury and offered to pay the jury fee, contending that the statutes (articles 2123 to 2129) guaranteed the right. The court refused the request and qualified the bill of exception raising the question, as follows: "The court refused the demand for a jury for the reason that no demand for the jury had been timely made and no jury fee had been timely paid and to grant the demand and order a jury trial would have meant a continuance of the case until the December Term, 1932, of said court, as it appeared to the trial court at that time."
Appellant accepted the bill, of exception as qualified, and the question thus presented is ruled by the decision in the case of United Fidelity Life Insurance Co. v. Handley (Tex.Civ.App.) 53 S.W.2d 833, 835, as follows: "It has been held that the statute cited above is not mandatory, but that the trial judge, in the exercise of a sound discretion, may permit either party to call for a jury at a later date in the term, provided, however, it will result in no injustice to the other party and work a continuance of the case. The qualification appended to the bill of exception by the court shows that the granting of appellant's motion to have the case placed upon a jury docket would have resulted in a continuance. Having accepted the bill with this qualification, appellant is bound by it. Therefore no error is shown in this particular." See, also, Public Indemnity Co. v. Pearce (Tex.Civ.App.) 56 S.W.2d 906; 26 Tex.Jur. p. 586, § 26; and Tucker v. Lingo (Tex.Civ.App.)248 S.W. 1097.
Appellant's fourth proposition reads as follows: "Where a final judgment is enjoined, upon the dissolution of the injunction, the court cannot render judgment against the injunction bond and its sureties for the amount of the judgment in the principal suit."
This proposition is decided against the contention made under our holding that the court in the bill of review case could affirm the former judgment, or render such judgment as equity required, and that such *Page 271 judgment became the final judgment in the case. The injunction bond obligated appellant and its bondsmen to "pay all sums of money and costs that may be adjudged against him," and the court properly rendered judgment against the injunction bond and its sureties for the amount of the judgment in the principal suit. Garrett v. Kelley (Tex.Civ.App.)6 S.W.2d 414 (writ of error refused).
We find no error in the judgment rendered in cause No. 7925, and it is affirmed.
Affirmed.