Davis v. Terry
| Decision Date | 01 January 1870 |
| Citation | 33 Tex. 426 |
| Parties | O. S. DAVIS v. B. F. TERRY. |
| Court | Texas Supreme Court |
1. An application for a new trial, made at a term subsequent to that at which judgment was rendered, is in the nature of a bill in equity, and is not governed by the statutory provisions relating to new trials.
2. When judgment has been rendered against a defendant, and at a subsequent term he applies for a new trial, alleging a meritorious defense, and showing that he was debarred from establishing it by reason of accident, fraud, mistake, or other circumstance not imputable to his own fault or neglect, the application should be granted, even though only a prima facie case of injustice is made apparent in the application.
3. The assurance of the district judge, to a defendant in a civil suit, that no civil business would be transacted at that term, warranted the defendant in believing that no action would be taken in his cause, and excused his neglect of his defense at that term; and this in connection with a prima facie showing of a good defense, entitled him at the next term to have a new trial of the cause, which, notwithstanding the judge's assurance, had been adjudged against him by default at the first term. But, had the assurance been made by any one other than the judge of the court, it would not have availed the applicant.
APPEAL from Hopkins. Tried below before the Hon. H. P. Mabry.
The facts are sufficiently stated in the opinion of the court.
No briefs for either side.
In applications for new trials at a term of the court subsequent to the trial term at which a judgment is obtained, the proceeding is in the nature of an original suit in equity. Whatever, therefore, would be the subject of equitable cognizance in any case, would be of like cognizance in a suit for a new trial. The party complaining is not, consequently, confined by the rules of the statute in reference to the granting of new trials. The principles of equity must prevail in such applications. If there be accident, fraud or mistake, or any other circumstances, not attributable to his own fault or neglect, nor within his control, by which he was virtually denied a defense of the cause, which seemed meritorious, it is certainly unjust to refuse the application, when such equitable excuse is rendered; and a re-opening of the case ought to be made to let in the defense, and give the party an opportunity to be heard, if even only a prima facie case of injustice is made apparent.
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O'BOYLE v. Bevil
...for such actions, the other party would present to the court, may be the basis of a suit to set aside a judgment for fraud. See Davis v. Terry, 33 Tex. 426; Mills v. Baird, Tex.Civ.App., 147 S.W.2d 312. See full discussion also in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001, w......
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Bunker v. Lott
...City of Eastland v. Owen, Tex.Civ.App. Eastland, 1932, 49 S.W.2d 534, reversed on other grounds in 124 Tex. 419, 78 S.W.2d 178; Davis v. Terry, 1870, 33 Tex. 426. In a case where a complainant had already filed his amended motion for new trial, equity would be applicable to the end of the a......
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Huddleston v. Texas Pipe Line Co.
...persuasive, and not binding upon the court, and no more was required than to make a prima facie showing of a meritorious defense. Davis v. Terry, 33 Tex. 426. They believe that such prima facie showing was made in the instant The motion for rehearing is accordingly overruled. BUCK, J., diss......
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Kerby v. Hudson
...during the term, he may bring an equitable action after its close to reopen the case and dispose of the litigation on its merits. Davis v. Terry, 33 Tex. 426; Hudson v. Kerby (Tex. Civ. App.) 5 S.W.(2d) 1007, and authorities there cited; First Nat. Bank v. Southwest Nat. Bank (Tex. Civ. App......