Eddleman v. McGlathery
| Court | Supreme Court of Texas |
| Writing for the Court | Gaines |
| Citation | 11 S.W. 1100 |
| Parties | EDDLEMAN <I>v.</I> McGLATHERY. |
| Decision Date | 11 June 1889 |
v.
McGLATHERY.
Appeal from district court, McCulloch county.
A. Eddleman, for appellant.
GAINES, J.
The appellant brought this suit in the court below. At the second term of the court after its institution he forwarded to the clerk an application for continuance, but, neither he nor his attorney having appeared when the cause was called for trial, the court dismissed the suit for want of prosecution. At the next succeeding term of the court he filed a motion for a reinstatement of the case upon the docket, and for a new trial, which was stricken out on motion of the defendant. From this last order this appeal is taken.
In the view we take of the case, we deem it unnecessary to discuss the contents of the motion for a new trial. The judgment of dismissal at the former term was a final judgment, and it is a well-settled rule of practice in this state that after the adjournment of the term at which such a judgment is rendered it is no longer subject to the control of the trial court. Rogers v. Watrons, 8 Tex. 62; Metzger v. Wendler, 35 Tex. 378. In Overton v. Blum, 50 Tex. 417, it is said "that, although the contrary might be inferred from some of the earlier decisions, it must now be regarded as settled that a new trial is never in fact granted after the adjournment of the term of the court at which the judgment is rendered, no matter what are the grounds urged in support of the application." Where a party has been prevented by fraud, accident, or mistake from prosecuting his suit or making his defense, and an opportunity has not been offered him for moving for a new trial during the term, he may bring an equitable action after its close to reopen the case and dispose of the litigation upon its merits. But in every such case the new suit has all the incidents of an original action, and, upon every issue involved, either party is entitled to a regular trial before a jury upon testimony offered in the manner usual upon the hearing of causes upon their merits. A motion for a new trial, on the contrary, does not involve a trial upon the merits of the case, further than that the applicant must show prima facie that he has merits; and it is properly disposed of in a summary manner either upon the face of the record, or upon affidavits of the parties and of their supporting witnesses. That the appellant in this case has mistaken his remedy is well settled by numerous decisions of...
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Bridgman v. Moore, 4422.
...to determine Issue (a) at one hearing and to determine Issue (b) at a later hearing. Rule 301. Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100; Taylor, Knapp & Co. v. Fore, 42 Tex. 256; Roller v. Wooldridge, 46 Tex. 485; Overton v. Blum, 50 Tex. 417; Browning v. Pumphrey, 81 Tex. 163, 16 ......
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Knight v. Waggoner, (No. 1514.)
...disposed of by the court without the intervention of a jury. Hester v. Baskin, 184 S. W. 727; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100. On the other hand, the appellants attacked the judgment as rendered as being wrong on the merits and sought to set it aside because it was claime......
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Greenstein, Logan & Co. v. Burgess Marketing, Inc., No. 10-87-005-CV
...or denied. A court is not required to consider a motion that is not called to its attention. Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100, 1101 (1889). Point three is Greenstein Logan alleged in an amended answer and counterclaim that Burgess Marketing and Jack Burgess had violated the......
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Moore v. Snowball
...and that without their fault they were prevented from presenting it to the court at the trial. Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100; Goss v. McLaren, 17 Tex. 107, 67 Am. Dec. 646. Such an action could not have been maintained upon the facts of this case. Upon what authority ca......
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Bridgman v. Moore, 4422.
...to determine Issue (a) at one hearing and to determine Issue (b) at a later hearing. Rule 301. Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100; Taylor, Knapp & Co. v. Fore, 42 Tex. 256; Roller v. Wooldridge, 46 Tex. 485; Overton v. Blum, 50 Tex. 417; Browning v. Pumphrey, 81 Tex. 163, 16 ......
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Knight v. Waggoner, (No. 1514.)
...disposed of by the court without the intervention of a jury. Hester v. Baskin, 184 S. W. 727; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100. On the other hand, the appellants attacked the judgment as rendered as being wrong on the merits and sought to set it aside because it was claime......
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Greenstein, Logan & Co. v. Burgess Marketing, Inc., No. 10-87-005-CV
...or denied. A court is not required to consider a motion that is not called to its attention. Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100, 1101 (1889). Point three is Greenstein Logan alleged in an amended answer and counterclaim that Burgess Marketing and Jack Burgess had violated the......
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Moore v. Snowball
...and that without their fault they were prevented from presenting it to the court at the trial. Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100; Goss v. McLaren, 17 Tex. 107, 67 Am. Dec. 646. Such an action could not have been maintained upon the facts of this case. Upon what authority ca......