Crouch v. McGaw

• Decision Date: 27 March 1940
• Docket Number: No. 7650.,7650.
• Citation: 138 S.W.2d 94
• Parties: CROUCH et al. v. McGAW, District Judge, et al.
• Court: Texas Supreme Court

Page 94

138 S.W.2d 94

CROUCH et al. v. McGAW, District Judge, et al.

No. 7650.

Supreme Court of Texas.

March 27, 1940.

Original proceeding by Leo Crouch and others, for a writ of prohibition enjoining Clarence E. McGaw, District Judge (Panama Refining Company and others) from further interfering with the enforcement of a judgment of the Supreme Court, 132 Tex. 608, 124 S.W.2d 988.

Writ granted.

Jones & Jones, of Marshall, J. E. Smith, of Longview, and C. A. Brian, of Marshall, for relators.

Lee & Porter and Edward A. Brown, all of Longview, for respondents.

SHARP, Justice.

Relators have filed an application here for a writ of prohibition, enjoining Panama Refining Company, a corporation, A. F. Anding, Tom Potter, and Honorable Clarence E. McGaw, Judge of the 124th Judicial District Court of Texas, from further interfering with the enforcement of the judgment of this court, entered on February 22, 1939, in Cause No. 7210, Panama Refining Company v. Leo Crouch, 132 Tex. 608, 124 S.W.2d 988. This court granted a temporary writ of prohibition, restraining respondents from proceeding further in the above-mentioned suit, pending a decision of this court upon the merits of the application.

Leo Crouch filed the original suit in the District Court of Gregg County against the Panama Refining Company, A. F. Anding, Tom Potter, and M. Ulmer, for damages caused by their negligence while he was employed by them. Judgment was rendered in his favor on April 2, 1935, for $12,000, and the judgment of the trial court was affirmed by the Court of Civil Appeals. 98 S. W.2d 271. A writ of error was granted by this court, and the judgments of the trial court and Court of Civil Appeals were affirmed. 132 Tex. 608, 124 S.W.2d 988. Reference is made to the opinions rendered by the Court of Civil Appeals and this court for a full statement of the facts and issues involved in the case.

In pursuance of the mandate issued by the clerk of this court, an execution was issued on April 12, 1939, commanding the enforcement of the judgment, and same was placed in the hands of the Sheriff of Gregg County for collection. On April 13, 1939, Panama Refining Company, A. F. Anding, and Tom Potter, respondents, filed as plaintiffs, in Cause No. 13266-B, in the 124th Judicial District Court of Gregg County, a petition to set aside the judgment entered in the trial court. On April 13, 1939, Honorable Clarence E. McGaw, District Judge, without notice to relators, and without a hearing, issued a temporary restraining order, restraining relators from enforcing said judgment. A hearing on said temporary restraining order was had by the district judge on May 3, 1939, and evidence was introduced by both sides at said hearing.

Respondents' complaint for setting aside the judgment of the trial court is based substantially on the following grounds: (1) That Crouch and his attorneys fraudulently conspired to recover excessive damages from the Panama Refining Company, for an injury known to them not to be total and permanent; (2) that Crouch received money from his attorneys, pending the outcome of the suit, in which he falsely alleged and swore that his injuries were total and fully incapacitated him, when in fact they were only partial and temporary; (3) that Crouch and his attorneys refused a request for the medical examination of Crouch; (4) that the attorneys for Crouch stated during the trial that Dr. Richardson, who had treated Crouch at the request of Ulmer, would be present to testify, and that a subpoena had been issued for him, when in fact none had been issued, and which deprived respondents of the opportunity of cross examining the doctor, who would have sworn that Crouch's disability was partial and temporary; and (5) that Crouch led respondents to believe he would not testify that his injuries were total and permanent, and that he would appear in court without a cane or brace at the trial.

On May 3, 1939, the court heard the application of plaintiffs for a temporary writ of injunction, and after overruling the general demurrer and special exceptions to plaintiffs' application, the trial court in the order said: "And, thereupon, the Court did hear evidence on said petition and application for injunction and, after hearing said evidence, concluded that same was insufficient to show any conspiracy among the defendants, but the Court, being of the opinion that there was evidence tending to raise the issue of whether or not Leo Crouch did perjure himself on the original trial of this cause, concluded a temporary injunction should be granted on the application and petition of plaintiff."

A suit instituted for the purpose of setting a judgment aside and to retry the cause is an equitable proceeding, and the grounds on which such suit may be instituted are narrow and restricted. To obtain a new trial after the expiration of the term, something more than injustice must be shown. For a full statement of the essential requirements that must appear before a judgment may be set aside, we cite: Harding v. W. L. Pearson & Co. et al., Tex. Com.App., 48 S.W.2d 964, and cases cited therein; Humphrey v. Harrell, Tex.Com. App., 29 S.W.2d 963; 25 Tex.Jur. p. 585, § 185. Respondents' petition falls far short of meeting the requirements for a bill of review. The trial court concluded that the evidence was insufficient to show a conspiracy on the part of relators, but was of the opinion that the evidence was sufficient to raise the issue that Crouch perjured himself in the original cause, and for that reason granted the temporary injunction as prayed for in the petition. Thus it appears, from an analysis of the facts alleged, that the petition for injunction and for setting aside the judgment is narrowed to one ground, and that is whether Crouch swore falsely on the original trial. That this reason does not justify the setting aside of the original judgment and the issuance of a temporary injunction prohibiting its enforcement is now well settled. Besides, the affirmance of the judgment of the trial court made it the judgment of this court.

The rule is universally recognized that alleged perjury of a witness upon a trial of a contested issue, to which the opposing party had the opportunity to refute, will not furnish a basis for setting aside the judgment on bill of review. Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ. App., 92 S.W.2d 493; United States v. Throckmorton, 98 U.S. 61, 68, 25 L.Ed. 93; Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95; Houston, E. & W. T. Ry. Co. v. Chambers, Tex.Civ.App., 284 S.W. 1063; Reed v. Bryant, Tex.Civ.App., 291 S.W. 605; 15 R.C.L. 770; 34 C.J. 280; Freeman on Judgments, 5th Ed., vol. 3, § 1241. It is the policy of...