1. Fraud — Injunction Against Judgment.
Under article 2875, Revised Statutes, the fraud that will excuse failure to apply for an injunction against a judgment within twelve months, has in contemplation some act other than the mere taking of a judgment that ought not to have been taken .......................... 642
2. Immaterial Error.
That injunction was erroneously perpetuated as part of the relief is not material, inasmuch as grounds were shown to support the judgment relieving the homestead from the effect of the foreclosure decree, against which relief there was no bar. The result being correct, the judgment is approved ..................... 642
STAYTON, CHIEF JUSTICE.
We fully concur in the opinion of the Court of Civil Appeals in so far as it holds that sufficient grounds existed to require the reformation of the judgment of which plaintiff complained; but that judgment was rendered more than twelve months before he instituted suit asking that relief, and also injunction to restrain the enforcement of the judgment.
The statute provides, that "no injunction to stay an execution upon any valid and subsisting judgment shall be granted after the expiration of one year from the rendition of such judgment, unless it be made to appear that an application for such injunction has been delayed in consequence of the fraud or false promises of the plaintiff in the judgment, practiced or made at the time of or after the rendition of such judgment, or unless for some equitable matter or defense arising after the rendition of such judgment." Rev. Stats., art. 2875.
The fraud consisted in taking a decree of foreclosure on that part of one of the tracts which constituted defendant's homestead, when the mortgage had been corrected by a release placed on record as soon as the mistake was discovered; but the application for injunction was not delayed in consequence of any act, decree, or promise made at the time of or after rendition of judgment.
The defendant had been cited to appear before the decree was entered, and the citation advised him that foreclosure of mortgage on these tracts of land was prayed for; but he had no reason to believe that plaintiff was asking foreclosure on the entire tract of which his homestead was a part after the mortgage covering that by mistake had been corrected by release.
Such a decree, however, was entered, and no act was done at that time or subsequently to induce him to believe that the decree would not be enforced. The statute which excuses the failure to apply for injunction within one year has in contemplation some act, other than the mere taking of a judgment that ought not to be taken, by which a party is caused to delay making application; and no such acts appearing, we area of opinion that Lumpkin's right to writ of injunction was barred.
While right to that specific relief was barred, it does not follow that any other lawful relief not barred might not be granted.
Lumpkin sought a reformation of the judgment, so as to exclude his homestead from its operation; that he was clearly entitled to under the facts shown, and right to such relief was not barred. The injunction ought to have been dissolved; but if it had been, no benefit would thereby have resulted to the holder of the judgment of which reformation was sought, unless some person could be found who would buy the property in controversy subject to the right of Lumpkin as it might be declared in the pending litigation.
The result reached by the Court of Civil Appeals is correct, and application for writ of error will be overruled.
Delivered April 30, 1894.