Bell v. Walnitzoh

• Decision Date: 01 January 1873
• Citation: 39 Tex. 132
• Parties: JOHN G. BELL v. PAUL WALNITZOH.
• Court: Texas Supreme Court

39 Tex. 132

JOHN G. BELL

v.PAUL WALNITZOH.

Supreme Court of Texas.

1873.

1. It is error for the district court to disregard additional causes for a new trial discovered and alleged after the filing of the original motion, and after two days from the trial.

2. In a cause taken by appeal from a justice's court to the district court, and in which a motion for new trial has been overruled, an original bill for a new trial may be entertained, and from the action of the court on such bill appeal lies to the supreme court.

3. It would seem that a judgment obtained by fraud or false swearing would be invalid.

4. Perjury not discovered in time to be shown in a motion for a new trial may be made available in a bill for that purpose.

APPEAL from Austin. Tried below before the Hon. Livingston Lindsay.

The facts appear in the opinion.

A. Chesley, for appellant, cited 1 Gra. & Wat. New Trials, 161, 172, 57; 3 vol. 994, 1470, 1467; Hill. New Trials, 416, 451, 376; Fisk v. Miller, 13 Tex. 227; Bigelow, Estoppels, 4; Story, Eq. sec. 32; Goss v. McLaurin, 17 Tex. 114.

Hunt & Holland, for appellee, cited De Leon v. Owen, 3 Tex. 154;Thompson v. Buckley, 1 Tex. 35;Cook v. Garza, 13 Tex. 444;Ward v. Cobb, 14 Tex. 303;Burnley v. Rice, 21 Tex. 183;Vardeman v. Edwards, 21 Tex. 739;Gregg v. Bankhead, 22 Tex. 252; 3 Gra. & Wat. New Trials, 1021, 1083, 1457, 1461, 921, 930, 963, 1520; Aldredge v. Murdoff, 32 Tex. 208;Shirley v. Byrnes, 34 Tex. 626;Osborne v. Scott, 13 Tex. 59;Guffey v. Mosely, 21 Tex. 409; Peck v. McKellar, 34 Tex. 238; Clark v. Koehler, 32 Tex. 684.

OGDEN, P. J.

In 1868, A. J. Hough obtained a judgment in a justice's court against Paul Walnitzch for the sum of $35.28, and in the due course of business sold or transferred this judgment to appellant, John G. Bell. Walnitzch appealed the cause to the district court, and Bell appeared in the district court, alleging that the judgment below had, for a valuable consideration, been transferred to him, and asked to be permitted to prosecute the appeal in the place of Hough, the original plaintiff. His prayer was granted, and he was permitted to prosecute the appeal as plaintiff. On the trial in the district court, Walnitzch was placed on the stand as a witness for defendant, and testified that Hough was largely indebted to him over and above the judgment obtained in the justice's court. Upon this testimony there was a verdict and judgment against Bell for $194, which judgment was wholly remitted by the defendant, excepting the costs. On the second day after the verdict, Bell being absent, his counsel filed a motion for a new trial, and on the ninth day, Bell having returned, and before the motion for a new trial had been considered by the court, an amended motion for a new trial was filed, which the court refused to consider, because the same had not been filed within the time prescribed by law.

We think this was error. The law had been complied with, the motion for a new trial had been filed within two days, and it may be presumed that the motion was regularly entered on the motion docket, as nothing appears to the contrary. The opposite party was thereby notified that a new trial would be sought, and it was his duty, if he wished to resist the motion, to watch the same until it should have been finally disposed of. The object of the law in requiring the motion to be filed within the two days is most evident. Parties are not expected, and should not be required, to remain in attendance upon the court during the whole term, after their business has been disposed of, unless they shall be notified within a reasonable time that an effort will be made to set aside what has already been done. And therefore if no motion for a new trial is made before the expiration of the two days, parties are no longer required or supposed to remain in court, or to take notice of any action had therein. But when a motion has once been filed within the prescribed time, all parties who were legally before the court, on the trial of the cause, are chargeable with notice of any action had in the premises until that motion shall have been finally disposed of. It is true that art. 1473, Pas. Dig., requires that “every such motion shall be accompanied by a written specification of the grounds on which it is founded, and none other than those specified shall be heard.” But...