Trammell v. Watson

Citations

• 25 Tex. 210

Syllabus

<p>The limitation of one year within which to apply for an injunction, after a judgment has been obtained, does not apply to a case where judgment has not been rendered against a surety on an appeal bond upon affirmance in . the Supreme Court. (Paschal’s Dig., Art. 3931, Note 924.)</p> <p>The appeal bond required by the 136th section of the act of 13th May, 1846, to regulate proceedings in the district court, does not have the force and effect of a judgment. (Paschal’s Dig., Art. 1491, Note 583.)</p> <p>Where, in rendering the judgment of affirmance, the clerk had omitted the name of one of the sureties, an execution was not warranted by the judgment of the Supreme Court, nor by the statutory effect of the appeal bond ; and the execution against such surety was void, and it was properly perpetually enjoined.</p> <p>This court has often recognized and acted upon the rule in equity, that, although the party in his special prayer for relief has mistaken the relief to which he is entitled, yet under the prayer for general relief he shall have awarded him the appropriate relief to which, upon the allegation and proof, he may appear to be entitled.</p> <p>But it is essential that the defendant should have so framed his answer as to show himself entitled to judgment upon the bond. At all events, the allegations of the party must not be repugnant to the granting of such relief.</p> <p>Where the petition charged, that in affirming the judgment the Supreme Court did not render judgment against the plaintiff in an injunction cause, and the answer did not admit that charge, but seemed to deny it, upon the general prayer for relief in the answer, the defendant was not entitled to the relief to which he would have been entitled upon a proper case made in reconvention.</p>