Bryorly v. Clark

Decision Date01 January 1877
Citation48 Tex. 345
CourtTexas Supreme Court

APPEAL from Red River. Tried below before the Hon. Joseph Bledsoe.

John H. Clark sued Bryorly, at June Term, 1875, of the District Court of Red River county, on a contract between the parties, in which Clark sold to Bryorly 183,113 feet of lumber, at prices therein stated. Service of citation was had. Defendant employed counsel, and a general demurrer and general denial was pleaded.

It was insisted, by defendant, that, by verbal agreement between plaintiff and the counsel for defendant, it was agreed that the case should not be called before June 24, 1875. The defendant thereupon, being unwell, returned home, and his attorney went to another court on professional business. June 14, in absence of defendant and his attorney, an ex-parte trial was had, and judgment rendered for plaintiff for $1,800.

The defendant, on hearing of the judgment, went to the county-seat on the 15th of June, and made a motion for a new trial, on the grounds--1. That on the day of trial defendant was, from illness, unable to be in attendance upon the court. 2. Because his attorney, W. B. Wright, Esq., was absent, and his presence was material. Defendant had been informed by his counsel that some definite day for the trial of said cause would be fixed and set by the court, and that he believed his attorney was absent from mistake or misapprehension. 3. That defendant had a meritorious defense (setting it up).

The motion for new trial was overruled.

June 21, 1875, Clark made affidavit that Bryorly was “about to remove his property from the county of Red River before the rising of the District Court, then in session.” Whereupon execution was issued, and at once levied upon a stock of merchandise of Bryorly's.

June 29, 1875, Bryorly presented his petition to the judge then presiding, Hon. J. C. Easton, asking an injunction restraining the sheriff from selling under the execution, &c., and asking that the judgment be set aside, and a new trial granted; which injunction was granted and issued. The District Court was still in session. The petition set out, in detail, a history of the proceedings, and alleged that the judgment had been obtained by fraud; that plaintiff had made a parol agreement with the attorney of defendant that the case should be set for trial June 24, and that upon said agreement the defendant and his counsel were absent; and that plaintiff, taking advantage of their absence, so induced, pressed the case to trial, and obtained judgment.

It was further charged, that but a small sum was in fact owing to plaintiff. The general outlines of the testimony, touching the state of accounts between the parties, are given in the opinion, sufficiently to be understood.

The petition also stated: “1. Said defendant Clark well knew that petitioner, on fair settlement, owed him but the amount heretofore stated ($290). 2. That said judgment was procured through fraud and treachery. 3. That the grounds stated in the affidavit for the issue of the execution were entirely false, and that there was no foundation for the statement.”

The petition also set out special damage from the levy of the execution, and asked damages.

The defendant answered, and denied particularly all the material allegations in the petition. The judge granting the injunction refused to dissolve it; motion to dissolve having been heard in chambers on November 13, 1875.

Subsequently, May 29, 1877, as appears by bill of exceptions in the record, on the trial of the cause the general demurrer was sustained to the petition, and suit dismissed. Following the signature of the judge to the bill of exceptions, is the note: “After signing the above exceptions, the judgment of the court was suspended, and the case taken under advisement, and the judgment shown by the record entered.”

May 30, 1877, the judgment was entered of record, sustaining exceptions so far as the petition seeks a new trial of the matters adjudicated in the former suit, and vacating the former judgment, and overruling the exceptions “as to so much of the petition as sets up damages for causing said execution to be issued before the rising of the court at which judgment was rendered, and the injuries and damages caused by reason thereof.” The judgment then proceeds: “And the plaintiff thereupon expressly declining to amend his pleadings, and refusing to further prosecute his suit in this behalf, it is therefore ordered,” & c., dissolving the injunction and dismissing the suit.

May 31, plaintiff filed motion for new trial, because of error in sustaining the demurrer and in dismissing the cause. On the same day, the motion was overruled, and plaintiff appealed.

W. B. Wright, for appellant.--This was a suit originally instituted by appellee, J. H. Clark, against R. T. Bryorly, appellant, in the District Court of Red River county, on a certain contract for lumber. Upon this contract, a judgment was obtained by said Clark through fraud and duplicity. Appellant Bryorly, at the same term of the court at which the judgment was rendered, filed a motion praying for a new trial, which motion was overruled by the court. Immediately after said motion was overruled, and during the same term of the court, and long before said adjournment of said court, Bryorly filed a petition, and obtained an injunction restraining the issuing of execution, and praying that said judgment be set aside, and a new trial be granted him, for the following reasons:

1st. That said judgment was obtained through fraud.

2d. That all that appellant Bryorly owed said Clark on settlement was the sum of $291.31.

The judge who granted the writ of injunction refused to dissolve it, on motion of Clark; but afterwards another judge, on demurrer and exceptions, dissolved the injunction and dismissed the petition. The exception most strongly urged, was, in substance, that Bryorly had made a motion for a new trial, which motion had been overruled, and therefore he could not be heard again. Mr. Freeman, in his work on Judgments, says: “The denial of a motion to open a judgment does not preclude a court of equity from subsequently granting the relief denied at law. The decision of such a motion is not such a res adjudicata as precludes equity from reëxamining the question.” (See Freeman on Judgments, 2d ed., sec. 511, page 509, and authorities there cited.)

Now, in the first place, was the judgment obtained by fraud? Clark had agreed with W. B. Wright, Bryorly's attorney, not to take up the case before a certain day of the term. Bryorly was sick, and went home under this agreement. But no sooner did Clark discover that Bryorly and Wright had left, than he took his judgment.

But the court below thought the agreement should have been in writing, to be effective and binding upon Clark. Mr. Freeman, however, in commenting upon the subject of taking judgments against agreements, says: “It makes no difference that the agreement is void, because made on Sunday, or was oral, when the rules of the court required all stipulations to be in writing. If it can be shown that it was successfully employed to prevent the defendant from making his defense, then the plaintiff will not be allowed to retain the advantage it has secured him.” (Freeman on Judgments, 2d ed., sec. 492, and authorities there cited.) The exhibits to the petition show that Bryorly did not owe Clark over three hundred dollars, and yet he took a judgment against him for over eighteen hundred dollars. Certainly, the court will not allow such an outrage upon justice and right to be perpetrated, but will always interfere and grant relief. (Freeman on Judgments, sec. 486, 2d ed.; Spencer v. Kinnard, 12 Tex., 180.) The demurrer and exceptions admitted everything stated in the petition to be true, and thus the judgment of the court was rendered without regard, or giving any weight, to the answer of Clark whatever. And yet the petition claimed damages for maliciously and wantonly making an affidavit and causing an execution to issue before the rising of court under which the property of Bryorly was seized, greatly to his damage. On the 29th day of May, 1877, the demurrer and exceptions were sustained, and the cause dismissed from the docket, when the appellant Bryorly took a bill of exceptions to the action of the court, and there rested, and, of course, thought his case was at an end, and left court. But, strange to say, after the bill of exceptions had been signed by the judge and filed, he makes a statement, at the bottom of the bill of exceptions, that he had suspended his judgment; and on same day he ordered a different judgment to be entered, from the one signed in his bill of exceptions, given to appellant Bryorly. This is certainly strange practice in a court of justice and law.

In view of all the facts in this case, I respectfully request the court to reverse the judgment rendered in this case, and send it back for a trial upon the merits, in accordance with the well-established principles of law and justice.

Charles S. Todd, for appellee.

I. The bill for injunction showed on its face that appellant had a full, adequate, and complete remedy at law; and therefore he could not claim the interposition of equity. (High on Inj., secs. 30, 46, 97, et seq.; Marine Ins. Co. v. Hodgson, 7 Cranch, 332;Smith v. Lowry, 1 Johns. Ch., 320;Borland v. Thornton, 12 Cal., 440; Bateman v. Willoe, 1 Sch. & Lef., 204.)

It is believed that the case of Goss v. McClaren, 17 Tex., 107, a leading decision of this court, is conclusive of this case. Appellant here, as in that case, relied on the statements of his attorney as his excuse for neglecting his legal rights; and this is insufficient.

Appellant's motion for a new trial in the original suit embodied all the material grounds set up in the bill, and his remedy was by appeal. He first resorted to his legal remedy, by filing said motion, and then deliberately abandoned it, and resorted...

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