Fisk v. Miller

• Decision Date: 01 January 1857
• Citation: 20 Tex. 572
• Parties: JOSIAH FISK v. JOHN G. MILLER AND WIFE.
• Court: Texas Supreme Court

20 Tex. 572

JOSIAH FISK

v.JOHN G. MILLER AND WIFE.

Supreme Court of Texas.

1857.

That the said verdict and judgment operated a surprise on him, and does him the greatest injustice, as he will hereafter show; that his title papers (now exhibited as part of this petition) were by some mistake, accident or omission, then beyond the control of your petitioner, not presented to the jury as was his wish, and he avers said omission occurred under circumstances which he considered then out of his power to prevent, is not a sufficient showing on general demurrer, for an injunction and new trial of an action to recover land, on the petition of the defendant in such action, filed after the term. 17 Tex. 107;21 Tex. 187, 740;29 Tex. 6.

Judgment against the defendant, in an action of trespass to try title to land, is conclusive of the right, unless reversed or set aside for cause; the right to a second action being granted by the statute to the plaintiff, and not to the defendant. 26 Tex. 316.

Appeal from Travis. Tried below before the Hon. Thomas J. Devine.

This was a suit for injunction by Josiah Fisk against John G. Miller and Catharine, his wife, to enjoin the execution of a judgment recovered by Miller and wife against Fisk and others, at the fall term, 1852, affirmed at Austin, 1854, and reported in 13th Tex. 224; and for a new trial upon the merits.

The petition alleged that the said verdict and judgment operated a surprise on him, and does him the greatest injustice, as he will hereafter show to your honor; that his title papers (which he described and exhibited as part of the petition) were by some mistake, accident or omission, then beyond the control of your petitioner, not presented to the jury as was his wish, and he avers said omission occurred under circumstances which he considered then out of his power to prevent. So it is, he has no remedy now except an appeal to your justice and exercise of your equitable powers. Your petitioner is advised and believes, that as the law governing proceedings in cases of trespass to try title, allows a plaintiff against whom judgment has been rendered, to institute a new suit for the same property within a year after the final decision and affirmance of judgment against him by the supreme court in the first suit, by a fair and equitable construction of the statute, a defendant who claims by a conflicting title and affirmative defense, being so far plaintiff, would have the same privilege accorded to him, especially upon presenting prima facie a better title either in himself or outstanding, than the plaintiff's in the former suit, and showing satisfactory reasons for its non-production on the former trial of the right. The title exhibited by Fisk was the proceedings in an action before a justice of the peace in Bastrop county, by Francis Winans against Hiram B. Hill, in which an attachment had been obtained by Winans and levied on the property in controversy on the 26th of January, 1846; a judgment rendered in favor of Winans on the 14th of February; and a sale of the property to Fisk by the sheriff of Travis county, as appeared by sheriff's deed dated July 17th, 1846, reciting the attachment, judgment and an order to sell the property. The justice who was in charge of the papers, and certified them, certified that the execution or order of sale could not be found.

Defendants demurred on the ground that there was no legal or equitable right set up in the petition; that all the facts existed within plaintiff's knowledge at the previous trial; that neither fraud nor error in obtaining the judgment at the former trial, was charged; that the petition showed plaintiff was concluded by the former judgment. The demurrer was sustained and the petition dismissed.Shelby & Carrington, for appellant. Upon the trial of the former suit, the appellees introduced a receipt without proving its execution, which was excepted to by the appellant; and upon the overruling of the exception the appellant's attorney rested his cause there, being confident of a reversal of the case in the supreme court, and being unwilling to introduce his client's testimony--title papers--unless there could be a fair showing given to the appellant. The appellant insisted that the title papers should be presented to the jury, and supposed it had been done until after the termination of the cause.

The appellant alleges in his petition in this case, the fact of his inability to present his testimony upon the trial--in consequence of the mistake thus resulting as we suppose from the indisposition of his attorney to prosecute the case further, until the ruling of the court below was corrected. It also alleges his surprise, resulting from the judgment of this court pronounced in the original cause. It will be recollected that this court sustained the exception taken by appellant's counsel, to the introduction of the receipt without proof of its execution, but ruled that there was enough in the special verdict of the jury to sustain the judgment of the court below. The learned counsel of appellees (having after the introduction of the receipt no opposition except such as appellant, thus unexpectedly deprived of counsel, could oppose in his own proper person with a little incidental assistance from counsel), induced the jury to bring in the special verdict, upon which the judgment of the court below and also of this court in confirmation was based. We think there can be no doubt but that the powers of a court of equity have been properly invoked upon the ground suggested in the petition, to wit: surprise, accident, and mistake.

The appellant's counsel was surprised by the ruling of this court. Knowing full well that a flagrant outrage upon the plainest principles of law had been perpetrated in overruling his exception to the introduction of the receipt without proof of execution, he doubted not that that was sufficient error for the granting of a new trial, and did not for a moment imagine that appellee's counsel could or would attempt to have such a special verdict rendered by the jury as to avoid the error thus perpetrated.

The appellant's petition alleges the accident or mistake by which he was unable to present the points of his cause to the jury--his title papers. The allegation is positive. It was in consequence of no fault or negligence of his, that it was not done. He desired it done, and supposed it was done, and would have been but for the mistake, etc. We think therefore that the real question before this court is as to the merits of the case. Has the appellant any equitable rights of which he has been deprived? [Here counsel argued the merits of the respective titles.] The general rule in reference to new trials is: “If there is strong probable ground to believe that the merits of the case have not been fully and fairly tried, and that injustice has been done, a new trial will be granted.” Wheeler v. Shilo, 2 Scam. 338. “If the court should see that injustice has been done or might have been done on the former trial, a new trial will be granted.” Kelsey v. Henner, 18 Conn. 311.

In cases of ejectment, the rule in reference to granting of new trials is much more liberal than in other cases. It was held in Mitchell v. Mitchell, 4 Binney, 180,“In an action of ejectment the court will grant a new trial, when the judge lays down the law too broadly.” As stated by Lord Mansfield in the celebrated case of Clymer v. Little, 2 Black. 345, 348,“The court rather lean to new trials on behalf of defendants in the case of ejectments, especially on the footing of surprise.” Tillinghast, Adams, 329; Adams, Eject. 388 and 326. It cannot be denied, that the appellant at common law, would have been entitled to bring his suit, and set up his superior title after appellees' recovery. In Jackson v. Duffendorf, 3 Johns. 269, it was held where there had been a judgment in favor of the plaintiff in ejectment, “The rights of the defendant were not prejudiced, he had a right to bring his action and recover according to the interest he had before ejectment.” See Chapman v. Armistead, 4 Munf. 382; 5 Ham. 509; 4 Cow. 667; Adams, Eject. 388 and 326 and 7. This being the law, we do not understand why the...