James T. Cyrus v. Francis M. Hicks, 20 Tex. 483

Roberts, J. This case has been carefully examined into, and although a number of irregularities are apparent in the record, there is but one error which affects the correctness of the decree finally rendered. That is in rendering a judgment for costs against the appellant and his sureties.

The decree recognizes the fact that the injunction was rightfully applied for and granted when the petition was filed, by enjoining “ the collection of the substituted judgment entered at the Fall Term, 1856.” That is, that at the time the enjoined execution was issued, there was not properly of record any judgment upon which it could be founded. The substitution of the judgment afterwards should not be held to place appellant in the wrong, ab initio, in claiming a remedy to which he was then entitled, but which the judgment, after it was thus substituted, swept away from him.

That part of the judgment, then, which decrees the costs of the suit against appellant and the sureties on the injunction bond, Pillow & Leitch, is erroneous, and it will, to that extent, be reversed. The Court ordered an execution to issue on the judgment as substituted at the Spring Term, 1857; and of this substitution the appellee complains that he had no notice of the motion to substitute.

The record shows that although this last purports to be a substitution nunc pro tunc, it really was not so; but effect was given to it only as a substitution of that Term; and the former order for substitution was in fact annulled. Of the first motion to substitute, appellee had no notice; but of the last he did, as he appeared and contested it. Under this view of the legal effect of the action of the Court, want of notice of the first motion to substitute the judgment becomes immaterial, and the last substitution, which was made in 1857, should be allowed to stand as it was adjudged.

The judgment is reversed as to the recovery of costs against appellant and sureties on his injunction bond, and affirmed as to the balance of the decree. Ordered accordingly.