Ames Iron Works v. Chinn

• Decision Date: 02 February 1899
• Citation: 49 S.W. 665
• Parties: AMES IRON WORKS et al. v. CHINN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

49 S.W. 665

AMES IRON WORKS et al. v. CHINN.¹

Court of Civil Appeals of Texas.

February 2, 1899.

Appeal from Brazoria county court; A. R. Masterson, Judge.

Action by the Ames Iron Works and others against H. W. Chinn. From a judgment for defendant, plaintiffs appeal. Affirmed.

Hudson & Woody, for appellants. Branch T. Masterson, for appellee.

WILLIAMS, J.

Appellants brought this action on the 15th day of November, 1897, to set aside a judgment which appellee had recovered against them in another suit. A general demurrer was sustained to the petition, and the cause dismissed upon appellants' declining to amend. The petition showed that on August 2, 1894, appellants had brought the suit, in which was rendered the judgment the setting aside of which was sought, against appellee, to recover the title and possession of an engine and boiler, in which appellants at the same time sued out and caused to be levied on the property a writ of sequestration (so far as the record shows the property remained in the hands of the sheriff); that on the 3d day of August, 1895, appellee filed therein his answer and plea in reconvention, in which he set up title in himself to the property, and sought to have it returned to him, and also to recover $1,000 damages, occasioned by the sequestration; that there was a trial November 20, 1895, and a judgment was rendered in favor of appellee for $490, the value of the machinery in controversy, and $135 damages caused by the levy of the sequestration; that an appeal was taken from this judgment, upon which it was reversed December 9, 1896, and all the material questions in controversy decided in appellants' favor by the court of civil appeals, and the cause was remanded for a new trial. 38 S. W. 247. The petition further shows that without any demand by plaintiffs the clerk of the appellate court issued an execution against Chinn for the costs of appeal, which were paid, and on the 17th of May, 1897, issued a mandate, which was filed in the county court May 21, 1897, and that on the 1st day of June, 1897, —the second day of the term,—the cause was tried, in the absence of plaintiffs and their counsel, and the judgment complained of was rendered, quieting appellee in his title to the property, and awarding him $845 damages.

We may concede that the petition is sufficient to show that the judgment is erroneous, and it therefore becomes unnecessary to state its allegations on that point. The defect in it consists in what we deem the insufficiency of the excuses offered for the failure of plaintiffs to attend the trial and present their case. With every disposition to grant relief against the judgment, we fail to find any warrant for such action in the facts stated, unless we ignore the rule, so long established, that in such a proceeding the plaintiff must not only show injustice in the judgment, but the failure to properly represent his right to the court was not the result of negligence on his part. Nevins v. McKee, 61 Tex. 413; Freeman v. Neyland. 23 Tex. 530; Harn v....