Bartlett Sims v. William R. Redding, 20 Tex. 386

Roberts, J. In this case appellant filed a petition for an injunction to enjoin a judgment in the District Court, in favor of Redding, upon the ground that it had been satisfied by the transfer of a certificate, and that the consideration given by Redding for this certificate was the release and satisfaction of this judgment, and his note for fifty dollars still held by Sims as a debt against Redding.

Appellee answered, explaining and avoiding this transaction, and moved the Court to dissolve the injunction and dismiss the petition, because (among other reasons) “ the petition is not verified by the affidavit of the plaintiff.” Appellant filed a motion asking the Court to complete the affidavit to the petition nunc pro tunc; and supported this motion by an affidavit that he swore to the petition at the time the Judge of the District granted the fiat. The defect of the jurat was that there was no officer’s name subscribed.

It appears by the bill of exceptions, that the appellant insisted upon his motion to complete the affidavit being considered and acted on by the Court before considering the motion to dissolve the injunction, which the Court refused to do, but proceeded to determine the latter motion, dissolved the injunction and dismissed the petition. The Court also rendered judgment for the amount the judgment enjoined, and decreed a cancellation of the said fifty dollar note given by Redding to Sims.

The most natural order of proceeding was to consider and act on appellant’s motion, and if the Judge was satisfied that he had administered the oath to Sims at the time of granting the fiat, he could have completed the affidavit by signing his name to the jurat. If the Judge would not thus amend it, because he was not satisfied of the fact or for any other reason, appellant had no means of compelling him to do it, any more than he can compel an officer to amend a return ; nor had he any other means by his own oath or otherwise, of supplying the defect.

The Judge having refused to act on the motion, which appealed directly to him to perform a personal act, we must presume that it was upon some reason satisfactory to himself. Whatever were his reasons, whether good or bad, he refused to amend what could be amended alone by his personal act, and that was an end of the matter. The petition not being sworn to, it was not error in the Court to dismiss it, dissolve the injunction, and render a judgment for the amount of the original recovery enjoined with damages.

But the decree cancelling the note for fifty dollars was erroneous, because it was that far a determination of the merits of the controversy, which was inconsistent with the judgment dismissing the petition. The judgment will be reversed and reformed. Reversed and reformed.