Kendall & Harcourt v. Edmund Mather, 48 Tex. 585

Moore, Associate Justice. This is the second appeal in this case. In the opinion of the court remanding the case on the former appeal, it was said: “ This, then, is an action brought in the District Court to enjoin the judgment of this court; and the District Court has so enjoined our judgment, and disregarded our mandate. Had the mistake in the former judgment been corrected in the District Court, pending this suit in this court, we might have conformed our action to the premises, on the proper filing of an amended transcript. (See Cowan, Adm’r, v.

Ross, 28 Tex., 227.) But the proceeding in this case has been wholly irregular, and the judgment of the District Court must be reversed and remanded. (Anderson v. Barry, 2 J. J.

Marsh., 279.)” Notwithstanding this direct and positive announcement by this court in this case, that the injunction granted by the District Court in this case was irregular and unwarranted, when the case went back to that court, instead of conforming its action to the judgment and opinion of this court, on precisely the same facts, in effect, as were before the court on the former trial, the court not only refused to dissolve the injunction and dismiss the plaintiff’s bill, but perpetuated the injunction which this court had held to have been irregularly and improperly granted.

The assumption, by the District Court, of the right, to disregard and set aside the judgment of this court, is, evidently, in palpable and direct conflict with its jurisdiction, and has not even the color of authority for its support or justification. However foreign this may have been from the intention of the judge, as we have no doubt it was, his action in thus disregarding its mandate was a contempt of this court, and a virtual denial and repudiation of its appellate power and jurisdiction.

That the judgments of this court, though plainly erroneous, are not open to question or discussion, but are conclusive and binding upon the District Court in the cases in which they are pronounced, is not a matter of doubt or controversy, and does not admit of argument for its support, or require the citation of authorities for its maintenance. Nor, indeed, does appellee’s counsel seem to claim for the District Court such authority. But he maintains that the judgment now under review is correct, and should be affirmed, because the judgment of this court which has been enjoined is an absolute nullity.

This, however, is to ignore the fact that the character of this judgment was not open to inquiry in the District Court when its judgment was rendered. This court, on the first appeal, held the judgment of the court to be a valid and bindiug judgment, which the District Court had no authority to enjoin. To say that a void judgment of this court, or that a void judgment of the District Court, though affirmed by this court, is wholly inoperative, and should be treated as an absolute nullity, when and wherever brought in question, is to beg the question involved in this case.

The point here, is not whether the judgment of this court, or the judgment of the District Court which was affirmed by this court, is a nullity, but whether the District or Supreme Court shall definitely and finally determine whether such judgment is a nullity or not. That the judgment in question was not a nullity was the point, in effect, decided on the former appeal of this case. And the judgment of this court thereon is just as conclusive and binding upon the District Court as its decision of any other question to which its appellate jurisdiction has attached.

It is not, however, to be inferred, from what has been said, that we regard the judgment in question as justly subject to any such objection, if the point was now an open one. The alleged vice rendering the judgment, as appellee’s counsel insist, absolutely void, is that the prayer in the petition does not justify the judgment. The court, it is not controverted, had jurisdiction of the parties and subject-matter of the suit. This being the case, the objection to the judgment, at most, is for error, and not nullity.

Nor is it to be inferred that we hold, or intend to intimate, that a party is necessarily precluded from relief in all cases against an unwarranted and erroneous judgment of the District Court, because of its affirmance by this court. The sole question presented for our consideration on this appeal, is whether cases are to be finally determined by this court or the District Court;—whether, when this court shall differ from the District Court as to the law of a case, its judgment is to be observed in respect by the District Court, or contemned and disregarded.

The judgment is reversed, and there being no necessity for remanding the case to the District Court, it is considered, ordered, and decreed, that the injunction granted appellee by the district judge be dissolved, and his bill be dismissed; and that appellants have and recover from principals and the sureties in the injunction bond, the amount from the collection of which they were enjoined, and all costs in the court below, as well as this court, in this behalf expended. Reversed and reformed.