Goss v. McClaren

• Decision Date: 01 January 1856
• Citation: 17 Tex. 107
• Parties: GIDEON GOSS AND ANOTHER v. ALEXANDER J. MCCLAREN.
• Court: Texas Supreme Court

17 Tex. 107

GIDEON GOSS AND ANOTHER

v.ALEXANDER J. MCCLAREN.

Supreme Court of Texas.

1856.

During the term the judge has a discretion to grant a new trial whenever, in his opinion, wrong or injustice has been done by the verdict, and it is upon the ground of this discretion that appellate courts have refused to interfere to revise the granting of new trials; but where the term has passed and a petition for a new trial is filed, it must disclose equitable grounds sufficient in themselves to entitle the party to a new trial, and the granting of such new trial is as properly a matter for revision as the granting of any other equitable relief. [12 Tex. 181;13 Tex. 444;18 Tex. 125;20 Tex. 578;21 Tex. 180, 740;29 Tex. 6.]

Whatever doubt there may be, whether we ought not to have revised the judgment on the former appeal (from the order for new trial on a petition filed after the term), and whatever might be our decision if that question were now before us, there can be no doubt that the decision then made (dismissing the appeal because from an interlocutory judgment) ought to be deemed the law of this case in which it was made, and that having refused to entertain the appeal and revise the judgment then (because the judgment was interlocutory), we cannot decline it now (after final judgment in the cause). [9 Tex. 58, 469;12 Tex. 344, 556.]

Where the granting of new trials after the term has been sanctioned by this court, it has been in the exercise of an equitable jurisdiction, analogous to that exercised by courts of chancery in England and the common law states of the Union in granting new trials in suits at law.

Want of knowledge of evidence material to his defense, or of the recovery of a judgment against him where he was served with process, or of any other matter which it was material for him to know in order to make his defense, or apply in time for a new trial, has never been held to afford the party any excuse, if by the use of reasonable diligence he might have known it.

The rules respecting the grant of new trials on petition filed after the term, held to be applicable to a petition filed after the term to set aside a judgment by default; and see this case for circumstances under which the judgment setting aside a judgment by default, upon petition filed after the term, was reversed and petition dismissed.

Appeal from Harrison. The appellants sued the appellee to recover a tract of land, and had judgment by default. After the expiration of the term and after the issue of a writ of possession, appellee presented his petition to the Hon. Lemuel Dale Evans, then judge of that district, asking an injunction and that the judgment by default be set aside. The injunction was immediately granted, and at the next term the appellants filed their answer and moved to dissolve the injunction and dismiss the petition. The motion was overruled; the previous judgment by default set aside, and the case reinstated upon the docket. The plaintiffs appealed, but the appeal was dismissed on the ground that the judgment was merely interlocutory. (See 8 Tex. 341.) Afterwards the suit proceeded to trial before Hon. William W. Morris, and the defendant in the original suit had judgment, the merits of which are not material to this report.

The petition for injunction and to set aside the judgment by default was as follows: To the Hon. Lemuel Dale Evans, judge of the district court for the sixth judicial district, the petition of Alexander J. McClaren, who resides in the county of Harrison aforesaid, complains of James Pickney Henderson, who resides in the county of San Augustine, and Gideon Goss, who resides in the county of Shelby, and shows that the said defendants, at the spring term of the district court of Harrison county aforesaid, A. D. 1850, on the ninth day of July, it being a day within the said term of said court, recovered a judgment against your petitioner for the following described land (here followed a description of the land), and also for the sum of twenty-five dollars damages for the detention of said land, and all the costs of suit in their behalf expended, taxed at about $12.50, which costs have been paid by petitioner. The petitioner further shows that the said defendants, on the sixth day of July, A. D. 1850, claimed the said land as aforesaid described, and do yet claim the same, under a survey made by virtue of the headright certificate of William J. Hamlet; that the record of the field notes of said survey in the office of the county surveyor of Harrison county aforesaid shows that the said survey was made on the first day of December, 1839, by one Thomas J. McKee, who then was a deputy surveyor for the county of Shelby aforesaid; that the said field notes were not recorded in the county surveyor's office of the county of Shelby previous to the year 1844; and that they were not recorded in the county surveyor's office of the county of Harrison until the _____ day of _____, A. D. 1849, nor platted upon the map of said county; that the said suit was commenced by the said defendants against your petitioner for the land aforesaid on the first day of May, A. D. 1850.

The petitioner further shows that he was, at the time the aforesaid suit was commenced, to wit: on the first day of May, A. D. 1850, and is yet the owner of about one hundred and forty acres of land lying within the said Hamlet's aforesaid survey, of the value of $420, and being the north part of the same; which land, claimed by petitioner, is described as follows, to wit: (here description of the land); that the land, claimed by petitioner, as last described, is a part of a six hundred and forty acre tract, surveyed for one Nathan B. Phillips, by George D. McGimpsey, who was then the county surveyor for Harrison county aforesaid, and was acting as a practical surveyor for said county on the 12th day of March, A. D. 1841, by virtue of the headright certificate No. 110, class 2d, issued to him, the said Phillips, by the board of land commissioners of Shelby county aforesaid, on the 4th day of April, A. D. 1839, which certificate was reported by the board of traveling commissioners as being a genuine and legal claim against the government of Texas for so much land, and has been acknowledged as such by the said government; that the unconditional certificate has been duly obtained; that the field notes of said survey have been duly recorded, and that a patent was duly issued by the said government of Texas on the 26th day of January, A. D. 1846, to the said Nathan B. Phillips, for the said six hundred and forty acres of land, surveyed as aforesaid, by virtue of his said certificate; which patent was duly recorded in the county clerk's office of said county of Harrison in book E, pages 134 and 135, on the 26th day of January, A. D. 1846; that the said Phillips, by a deed duly executed and delivered with the usual covenants of warranty, on the 18th of February, A. D. 1847, sold to one David Hill that part of his headright survey which your petitioner now owns, as aforesaid described, and which deed was duly proven and recorded in the county clerk's office of said county of Harrison on the 24th day of March, A. D. 1847, in book B, page 13; that the said Hill, by a deed duly executed and delivered on the 29th day of March, A. D. 1847, sold the tract last aforesaid to one Maxfield Anderson, which deed was also duly proven and recorded in the aforesaid office on the 5th day of April, A. D. 1847, in book F, pages 51 and 52; that the said Anderson, by a deed duly executed and delivered on the 6th day of December, A. D. 1847, sold the said last mentioned land to one Jonathan C. Craig, which said deed was duly proven and recorded in the office aforesaid on the 18th day of December, A. D. 1847; that the said Craig, by a deed duly executed and delivered on the 4th day of August, A. D. 1848, sold said last mentioned land to the petitioner, which deed was duly proven and recorded in the office aforesaid on the next day after the execution thereof, in book F, pages 576, 577 and 578.

The petitioner further shows that the said Phillips, by his bond duly executed and delivered to the said Hill, on the 17th day of December, A. D. 1844, bargained, sold and conveyed the land last aforesaid to him, the said Hill, and bound himself to execute to the said Hill a good and sufficient deed for the same in fee simple, as soon as the said Phillips should obtain a patent therefor from the government of Texas; which deed has been duly executed as above shown; that the said bond was duly proven and recorded in the clerk's office aforesaid on the 24th day of October, A. D. 1845, in book D, page 384; that the said Phillips took the actual possession of said land, as of his own property, in the fall of 1844, under and by virtue of a title bond executed and delivered to him by the said Hill for the same; and that petitioner and those through whom the petitioner claims from the said Anderson, have had the actual, peaceable possession of the said last mentioned land, cultivating, using and enjoying the same, and paying taxes thereon ever since the fall of 1844, and that petitioner still continues to hold possession of the same.

The petitioner further shows that the petitioner, after the said defendants had commenced their aforesaid suit against him, and before judgment was taken on the same, and before the first day of said term of said court, gave notice of the pendency thereof to the said David Hill; and that he, the said Hill, promised your petitioner that he would attend to the said suit, and defend petitioner's title to said land, and that petitioner, knowing that said Hill well understood the character of the title set up by the said defendants to said land, as well as the character of the title by which the petitioner holds that part of the same, as above described, and believing that he would appear in said suit and cause the proper answer to be filed,...