Garcia v. Jones, 10838.

• Decision Date: 15 October 1941
• Docket Number: No. 10838.,10838.
• Parties: GARCIA et al. v. JONES et al.
• Court: Texas Court of Appeals

155 S.W.2d 671

GARCIA et al. v. JONES et al.

No. 10838.

Court of Civil Appeals of Texas. San Antonio.

October 15, 1941.

Rehearing Denied November 12, 1941.

Appeal from District Court, Brooks County; L. Broeter, Judge.

Suit in the nature of a bill of review by Dr. Jose G. Garcia and others, against A. C. Jones, and others, seeking to set aside a District Court judgment rendered on December 1, 1934. From a judgment of dismissal entered after a general demurrer had been sustained, plaintiffs appeal.

Judgment affirmed.

See, also, Tex.Civ.App., 147 S.W.2d 925.

J. B. Lewright, Philip J. Montalbo, and R. G. Harris, all of San Antonio, for appellants.

Harold F. Thompson and Thompson, Knight, Harris, Wright & Weisberg, all of Dallas, Frank T. Morrill and Perkins & Floyd, both of Alice, and Harold A. Neuhaus and George Cannon, both of San Antonio, for appellees.

MURRAY, Justice.

This is a suit in the nature of a bill of review, seeking to set aside a judgment rendered on Dec. 1, 1934, in the District Court of Brooks County, Texas, in cause No. 429, styled Jose Vizcaya Prado v. Dr. Jose G. Garcia, et al. The petition for bill of review herein was filed on October 27, 1938, nearly four years subsequent to the date of rendition of the judgment sought to be set aside.

The bill alleges that the judgment was secured by fraud perpetrated upon Dr. Jose G. Garcia and the other appellants herein. It is shown that one of appellants, Manuel Garcia Hinojosa, discovered such fraud on Dec. 1, 1934, the day the judgment complained of was rendered, and the other appellants made such discovery approximately two months later, on February 1, 1935. No explanation, reason or excuse is alleged in the petition for the delay in filing the bill of review between the time the rendition of the judgment was discovered by appellants and the date the petition was filed.

The trial judge sustained a general demurrer and dismissed the petition for bill of review and Dr. Jose G. Garcia, San Juana Garcia, Rita Garcia and Manuel Garcia Hinojosa have appealed.

It was not only necessary for appellants to show in their petition for a bill of review that the rendition of the judgment in cause No. 429 was procured by fraud, without any negligence on their part, and that they have a good offense or defense in connection with the cause of action, but they must go further and show that they acted with diligence in instituting their petition for bill of review after they discovered judgment had been rendered.

Where it appears, as it does in this case, that there was a lapse of time amounting to nearly four years from the rendition of the judgment, before the filing of the petition for bill of review, then such long delay must be explained and it must clearly appear that the delay was not the result of the lack of diligence on the part of the petitioners, otherwise such petition is fatally defective and should be dismissed. Myers v. Pickett, 81 Tex. 53, 16 S.W. 643; Williams v. Creighton, Tex. Civ.App., 147 S.W.2d 274; Osborne v. Younger, Tex.Com.App., 235 S.W. 558; Ruland v. Ley, 135 Tex. 591, 144 S.W.2d 883; Early v. Burns, Tex.Civ.App., 142 S.W.2d 260; Dunlap v. Villareal, Tex. Civ.App., 91 S.W.2d 1124; Warne v. Jackson, Tex.Civ.App., 273 S.W. 315; De Camp v. Bates, Tex.Civ.App., 37 S.W. 644; Missouri Pac. Railway Co. v. Haynes, 82 Tex. 448, 18 S.W. 605; McCauley v. Northern Texas Traction Co., Tex.Civ. App., 21 S.W.2d 309; Maytag Southwestern Co. v. Thornton, Tex.Civ.App., 20 S.W.2d 383; Bergstrom v. Kiel, 28 Tex.Civ.App. 532, 67 S.W. 781; Floyd v. Eggleston, Tex.Civ.App., 137 S.W.2d 182; Eddingston v. Allen, Tex.Civ.App., 126 S.W.2d 1008; Hacker v. Hacker, Tex. Civ.App., 110 S.W.2d 923; Bray v. First National Bank, Tex.Civ.App., 10 S.W.2d 235; City of Corpus Christi v. Flato, Tex. Civ.App., 83 S.W.2d 433.

Appellants contend all that is required is that they file their petition for bill of review within the four-year period prescribed by Art. 5529, Vernon's Ann. Civ.Stats. We do not agree with this contention. A petition for bill of review is not a suit at law but an equitable proceeding, which is not governed by the statute of limitation, Art. 5529, supra, but by the rule of equity relating to stale demands and laches. What was said in McLane v. San Antonio Nat. Bank, Tex.Civ. App., 68 S.W. 63, 66, might well be here repeated:

"We do not mean to hold, however, that a man can sleep on an equitable cause of action for nearly four years without using the proper diligence to discover the facts which create it, or after the discovery of such facts, and not be guilty of such laches as would bar its successful prosecution. In actions at law a man can repose in security upon the statute of limitations up to a moment before the time it would bar his...