On Motion for Rehearing.
In behalf of appellee, an elaborate motion and argument for a rebearing has been filed, to which appellant, by his counsel, has replied by argument equally as elaborate, each citing numerous authorities in support of their several propositions and counter propositions. We cannot hope to satisfactorily dispose of all the contentions and counter *863contentions thus presented within reasonable limits, and shall not attempt to do so. We have, however, as far as time and our capacity enabled us to do, examined the whole, together with the entire record, and have concluded that appellant has presented the view most in harmony with the law, and that hence the motion for a rehearing should be overruled.
It will nevertheless, perhaps, be not amiss to add that we feel, not only that the conclusions announced in our opinion on original hearing are correct, but also that appellee’s petition is fatally defective on yet other grounds, duly discussed in the reply to the motion for rehearing. We will briefly discuss one of them.
The judgment appellee .seeks to set aside recites that the writ of garnishment was in fact served upon George 33. Wilkin, and that he was appellee’s local agent. This is not controverted, and hence the judgment may not be vacated bn the ground that the writ and return designated George Wilkin as the president of the appellee company. Upon this subject, the language of the Supreme Court is as follows:
“The trial court found that George E. Wil-kin was the local agent in Harris county of plaintiff in error, and was a proper person upon whom service could be had. This is not denied, and we think it does not invalidate the service because the writ and officer’s return designated him as president.” 270 S. W. 647.
The service of. the writ was considered defective only on the ground that the writ commanded appellee’s appearance before the court at a day of the term other than the “first day of the ensuing term.” It must be noted that these objections to the service are purely legal and do not appeal strongly to the conscience of a court of equity, if in fact appellee, at the time, not only knew the name of its local agent as found by the court, but also knew the requirement of the law for the command of the writ and the day fixed by law for the first term of the court to which the writ was returnable, and all this abundantly appears from the allegations of the appellee’s petition. In its behalf, an affidavit was presented, asserting the fact that George E. Wilkin was not the president of appellee company. This affidavit, it appears, was presented by counsel designating himself as an amicus curim, but who in fact appeared before the same court at the same term in behalf of the appellee in other cases,
The action is one in equity, purely, to set aside the judgment, and, under the circumstances alleged, it would seem that, in appelleeis first effort to have the judgment vacated, it should have made a full and frank statement of the actual condition of the assets owned or apparently owned 'by R. H. and J. L. Wilkin, which the plaintiff in garnishment had sought to" impound by the writ of garnishment and thus met the rule of equity which declares that he who seeks equity must come in with clean hands. Con-cededly, full disclosure on appellee’s part was not made until the filing of the amended petition now under consideration. We think, as intimated in our opinion in this case, handed down on June 13, 1925, that such disclosures came too late—at a delayed term evidently, which must have increased the hazard, if not the impossibility, for appellant to successfully meet and overcome the adverse claims of 'the banking commissioner of Oklahoma and the alleged rights of those who, it is now asserted, own the stock in the Lamb-McAshan Company that appellant impounded by his writ of garnishment. In the last appearance of this ease in the Supreme Court on writ of error (see 270 S. W. 547) the Commission of Appeals, in an able opinion by German, presiding judge, approved by the Supreme Court, approved the rule many times applied by our courts of final jurisdiction to the effect that to cancel a judgment which recites facts showing jurisdiction, the complainant, though showing that no service was actually had upon him, must also allege that he had a meritorious defense to the action before being permitted to maintain his suit. In the same opinion, the court quotes with approval what was said by the Supreme Court in the case of Freeman v. Miller, 53 Tex. 37£, in specifying the things necessary for the party to show to entitle him to relief, to wit:
“First, that Ms failure to make full answer was not attributable to his own. omission, neglect or default; second, that he has a good defense to the entire cause of action, or to such part of it as he proposes by his petition to litigate. It is not enough to show" that he was not guilty of neglect in permitting the judgment to go by default, but he must also clearly show that it is inequitable and unjust to permit it to be enforced.”
We conclude, as before stated, that the motion for rehearing should be overruled.
In this connection, it will be proper we think to further state that, since the handing down of our original opinion in this ease on June 13, 1925, to wit, on September 28, 1925, appellant presented to us, in chamber’s, a petition setting forth the proceedings in this case, and alleging that, notwithstanding our action and said decision, the appellee company, its agents and attorneys, were seeking to further proceed to a trial in the district court from which this appeal proceeded, and that in fact Hon. Guy Rogers, judge of said court, had, on application of the plaintiff, Lamb-McAshan Company, set the case down for trial on its merits on Monday, October 26, 1925. Appellant presented the contention that such proceeding or any further proceeding would invade the jurisdiction of this court and the Supreme Court upon writ of error, should appellee seek to obtain the *864same. Appellant accordingly prayed for the issuance of an injunction out of this court, prohibiting the appellee Lamb-McAshan Company and Hon. Guy Rogers, judge of said Seventy-Eighth District Court, and each of them, from applying for, attempting to procure, procuring, or issuing, any additional writs of injunction at any time, or in any court, anywhere, interfering with the rights of the appellant G. R. Ellis to proceed with the collection of his said judgment. The prayer of the petition was granted, and a temporary writ of injunction was, by this court, issued to the parties named, commanding them as prayed for in the application. Parties named were duly cited, and, upon the hearing of the motion for new trial, in accordance with the notice to so do, all parties appeared and argument was heard. We conclude that said temporary writ of injunction issued by this court should be continued and perpetuated unless otherwise ordered by this or the Supreme Court, and it is ordered that immediate notice of this conclusion be given to the appellee company and Hon. Guy Rogers. We do not regard this conclusion as in violation of the general right of a plaintiff to amend his pleadings and proceed to a trial upon the merits after a dissolution of an injunction procured by him. The right to so do necessarily, involves the conclusion that the petition upon which a trial is demanded presents a cause of action entitling him to the relief prayed for. In this case, it has been decided on appeal now pending, that the amended petition of the appellee upon which he proposes to proceed to trial, presents no right in him to set aside the judgment in garnishment, and we think: that, while the question of the sufficiency of the petition to disclose 'a right as asserted is pending for determination in an appellate tribunal, the jurisdiction and power of the trial court to further proceed must be held in abeyance. There is no contention in behalf of appellee that it can by amendment set up new and additional matter not known nor discoverable by the use of reasonable diligence at the time of the filing of the petition under consideration, and we hence think that appel-lee, and indeed appellant, must await a final determination of the questions involved on this and other appeals. To rule otherwise is to invite the possibilty, if not the probability, of embarrassing conflicts between the trial court and the appellate tribunals, and we think the conclusion reached is supported by a consideration of the cases of Larson v. Moore, 1 Tex. 22, 23, and the later case of Staples v. State ex rel., 112 Tex. 61, 245 S. W. 639.
Appellee prays that, in event we conclude to adhere to our former order dissolving the injunction in this case, appellant be required to give bond as required by article 4665, V. S. Tex. Civ. Statutes. This article provides that, upon the dissolution of any injunction restraining the collection of money, by an interlocutory order of the court or judge, “if the petition be continued over for trial, it shall be the duty of the court or judge to require of the defendant in such injunction proceedings a bond,” etc., “conditioned to refund to the complainant the amount of money, interest and costs, which may be collected of him in the suit or proceeding enjoined, in the event such injunction is made perpetual on final hearing.” It is to be noted that the article only requires such refunding bond in cases where the petition is “continued over for trial,” and we have decided that appellee has not shown himself entitled to a trial upon the merits. The statute, therefore, is without application. Moreover, we think the conclusion reached by us, to the effect that appellee, until otherwise ordered, is not entitled to a trial upon the merits, and that it therefore may not lawfully take any other or further proceedings in this case antagonistic to appellant until the final determination of the questions presented upon this appeal, apply in spirit to the appellant as well as to the appellee.
In view of the fact, therefore, that our Supreme Court may not agree with our conclusion on writ of error, we conclude that this opinion, in order to maintain the statu quo, shall be construed as broad enough to also prohibit appellant from suing out the venditioni exponas or other process for the sale of appellee’s properties, which it is alleged appellant is threatening to do. It is further ordered that the clerk forthwith serve both appellant and appellee and the' Honorable Guy Rogers with a copy of this order.
BUCK, J., not sitting.