Merrill v. Roberts

• Decision Date: 20 June 1890
• Citation: 14 S.W. 254
• Court: Texas Supreme Court
• Parties: MERRILL v. ROBERTS <I>et al.</I>

14 S.W. 254

MERRILL v. ROBERTS et al.

Supreme Court of Texas.

June 20, 1890.

Appeal from district court, Clay county.

Richard Morgan, for appellant. A. K. Swan, for appellees.

STAYTON, C. J.

On the 4th day of May, A. D. 1880, suit was instituted in the district court of Clay county by W. E. Roberts and his sisters, Mary E. Roberts and Mrs. L. P. Lodge, the latter joined by her husband, John Lodge, all residents of Texas, against Hamilton W. Merrill, a resident of New York, to recover an undivided one-half of a league of land situated in Wichita county, which had been patented to Hamilton W. Merrill, as assignee of Moses F. Roberts, who was the father of W. E. Roberts, Mary E. Roberts, and L. P. Lodge, and to have partition of the league of land between the plaintiffs and the defendant; the plaintiffs alleging in their petition that the land had been patented to the defendant, but that they had a superior equitable title to one-half of the land by reason of having inherited from their deceased mother her community interest in the certificate, by virtue of which the land was located and patented, and praying for a removal of the cloud which they alleged was cast upon their title by defendant's patent. Merrill answered, and on December 4, 1882, a judgment was rendered in favor of the plaintiffs. From that judgment Merrill prosecuted a writ of error, on which the judgment was affirmed on June 23, 1885. Merrill v. Roberts, 64 Tex. 443. It was there decided that under the averments of the petition the claim of the plaintiffs was not a stale claim. The land was patented to Merrill by virtue of the headright certificate of the father of the plaintiffs in that action, issued in 1838. Their mother died in 1839, and in 1851 their father transferred the certificate to a person who conveyed to Merrill, who, after locating it, obtained a patent, in 1860, which granted the land to him as assignee. At the term following that at which the judgment was rendered Merrill filed a petition seeking to set the judgment aside on substantially the same grounds set up in the petition in this case; but after an answer thereto had been filed Merrill asked leave to withdraw his petition or motion, with accompanying affidavits, as alleged, for the purpose of making another application, in which he desired to use the affidavits. On August 3, 1883, an order was entered, a part of which was as follows: "It is therefore ordered by the court that said motion for a new trial, filed April 4, 1883, is hereby overruled, without prejudice to any rights that defendant may have to a new trial; and it further ordered that defendant's application to withdraw said original motion, and the affidavits thereto attached, be refused."

The petition in the case now before us was filed on the same day the petition for writ of error was filed. That the certificate under which the land was granted was issued to Moses F. Roberts as the head of a family composed of himself, the defendants in this case, and their mother is not questioned. It is thus seen that the plaintiffs in the former action were entitled to recover, as they did, one-half of the land, unless Merrill was shown to be a purchaser for value, without notice of their right. It ought to be presumed that on the trial of the original cause every fact was proved that was necessary to entitle the plaintiffs therein to a judgment; but whether so or not is unimportant, for the inquiry now is whether appellant shows such facts as entitle him to have the case reopened. The rule in such cases is "that such relief will not be granted unless the party seeking it can show that he was prevented from making a valid defense to the action in which the judgment has been rendered against him by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on his part. He must be able to impeach the justice and equity of the verdict of which he complains, and to show also that there is good ground to suppose that a different result would be attained by new trial." Plummer v. Power, 29 Tex. 15; Vardeman v. Edwards, 21 Tex. 740. The court, on the trial of this cause, among other things, found "that the fact that the judgment of December 14, 1882, in cause No. 132, W. E. Roberts et al. v. H. W. Merrill, was rendered upon an ex parte trial was the result of negligence on the part of the attorney of said Merrill, for which the said Merrill must be held responsible; and that therefore the said Merrill is not entitled to have the said judgment set aside, notwithstanding he may have had a good defense to said suit; that it does not appear sufficiently clear that the said H. W. Merrill sustained such injustice by the rendition of said judgment as would entitle him to have the same set aside." If either of these findings be supported by the evidence, appellant is not entitled to the relief which he seeks. The evidence shows that appellant employed counsel resident, at the time the action was brought, in the county in which it was instituted, and conducted to final judgment, but that before the trial was had he had removed to Austin, and of this fact appellant was advised. Merrill had no other counsel of his own employment, but his counsel had associated other counsel with himself, one or more of whom were resident of the county. The term at which...