Opinion
No. 7315.
October 10, 1961. Rehearing Denied October 31, 1961.
Appeal from the District Court, Kaufman County, A. A. Dawson, J.
William C. Koons, Witts, Geary, Hamilton, Brice Lewis, Dallas, for appellant.
Ross Huffmaster, Kaufman, for appellee.
This is an appeal from a temporary injunction. The judgment of the trial court is reversed and judgment is here rendered dissolving the temporary injunction.
On October 14, 1959, W. H. Holt recovered judgment against Alvin Farley in the amount of $1,118.78, in the 68th Judicial District Court of Dallas County, Texas. On November 9, 1959, Farley filed suit against Holt in the 86th Judicial District Court of Kaufman County, Texas, seeking damages in the sum of $1,350, to which suit defendant duly filed an answer; also in this Kaufman County suit Farley sought a temporary injunction to enjoin Holt and the Sheriff of Henderson County, Texas, from levying execution under the Dallas judgment on the property of Farley. On Oct. 10, 1960, the trial court in the Kaufman County District Court granted the temporary injunction prayed for. Holt has appealed from said order.
Farley was duly served with citation in the Dallas District Court suit and the judgment rendered in said suit is valid on its face. The record shows that Farley received notice of the judgment of the 68th District Court of Dallas County, Texas, a few days after its rendition, however he did not file a motion for new trial, nor did he attempt to set aside the judgment, nor did he appeal or seek to appeal in any manner from it, and he has not filed a direct attack against such judgment by Bill of Review. Farley also neither alleged nor proved on the hearing for temporary injunction that he had a meritorious defense to Holt's suit and judgment. Farley also neither alleged nor proved that Holt was insolvent. By reason of the above matters Farley was not entitled to the temporary injunction. See the following authorities: Duncan v. Smith Brothers Grain Co., Tex.Comm.App., 113 Tex. 555, 260 S.W. 1027; Clayton v. Stephenson, Tex.Civ.App., 254 S.W. 507, wr. ref.; Miller v. Burnet Mercantile Co., Tex.Civ.App., 65 S.W.2d 505; Texas National Bank of Beaumont v. Moore, Tex.Civ.App., 118 S.W.2d 934; 18 Tex.Jur., p. 616; Williamson v. Johnson County, Tex.Civ.App., 241 S.W. 533; Magnolia Petroleum Co. v. McClendon, 123 Tex. 10, 65 S.W.2d 484; Bullitt v. Jesse French Piano and Organ Company, Tex.Civ.App., 158 S.W. 782, wr. ref.
The judgment of the trial court is reversed and judgment is here rendered dissolving the temporary injunction.
Reversed and rendered.