Gill v. Rodgers

• Decision Date: 01 January 1872
• Parties: W. H. GILL v. HUGH RODGERS.
• Court: Texas Supreme Court

37 Tex. 628

W. H. GILL

v.HUGH RODGERS.

Supreme Court of Texas.

1872.

1. Article 1473, Paschal's Digest, which requires that all motions for new trials in arrest of judgment, or to set aside a judgment, shall be filed within two days after the rendition of the verdict, is mandatory, and binding upon the court as well as the parties litigant.

2. A party desiring a new trial in a case, but who, from causes not under his control, has failed to file his motion within the time prescribed by the statute, has a remedy by an original bill in equity for that purpose.

3. After the expiration of two days from the rendition of a judgment, the parties are no longer considered as in court, and the successful party has a right to consider the judgment final, so that it cannot be disturbed otherwise than by appeal, or writ of error, or an original proceeding in equity.

APPEAL from Red River. Tried below before the Hon. A. H. Latimer.

This suit was instituted by the appellant against the appellee, in the form of an action of trespass to try title. On the 19th of October, 1871, judgment was rendered in favor of the defendant, and on the 9th of November, 1871, some three weeks after the rendition of the judgment, the plaintiff filed a motion for a new trial in behalf of one Randolph Baily, who, it seems, had purchased the land pendente lite.

One of the causes assigned for a new trial was that, pending the litigation, Randolph Baily, the party in whose behalf the motion for a new trial was filed, had purchased the titles of both of the parties litigant; and that it was understood and agreed between all of the parties that a compromise decree was to be entered up in the suit, vesting the title to the land in Baily; and that Baily and Gill, relying upon the promise of Rodgers to make no defense, but to allow a decree to be entered up in favor of Baily, paid no further attention to the suit, but that Rodgers disregarded this agreement, and, when the case was called, asked and obtained a judgment for the land in his own favor.

Attached to this motion for a new trial was an affidavit of Baily as to the truth of the facts set forth in the motion.

The court below overruled the motion for a new trial, and the plaintiff appealed.

Walton & Green, for the appellant. It is expected that the court will dispose of this appeal upon the principles laid down in Hough v. Hammond, 36 Texas, 657. It is no longer an open question that a judge, for good cause shown by applicant (who is a party in interest, and in fraud of whose rights the judgment rendered was obtained and acts), may grant a new trial after more than two days have elapsed since rendition of judgment; and that the failure of a judge so to do, where it was his manifest duty, is subject to the revision and correction of this court. (Wells v. Melville, 25 Texas, 337.)

It may be said that Baily has his remedy by separate suit. However this may be, he is entitled to his decree in the present suit, if his affidavits are true, and, for the purposes of this review, they are true. The court below is a court clothed with equity and common law powers, bound to exercise each for the vindication of justice and prevention of wrong and fraud; and surely it cannot be affirmed in its refusal to purge its records of the wages of palpable fraud. And this it should have done, without remanding the party seeking redress to a new and separate suit, on the principle that “equity abhors a multiplicity of suits.”

That the judgment rendered in this case is liable to be attacked, impeached, or set aside in collateral proceedings, admits of no doubt, from the facts as set out in the record, and the law as laid down in Kerr on The Law of Fraud and Mistake, p. 293.

But we...