Metzger v. Wendler

• Decision Date: 01 January 1871
• Citation: 35 Tex. 378
• Parties: F. METZGER v. C. F. WENDLER AND ANOTHER.
• Court: Texas Supreme Court

35 Tex. 378

F. METZGER

v.C. F. WENDLER AND ANOTHER.

Supreme Court of Texas.

1871.

1. As we have in this state no separate and distinct law and chancery courts, the rules of practice in those courts where the law and equity jurisdictions are distinct and separate cannot always be applicable to our courts.

2. In the courts of this state, an application for a new trial is governed by the same principles when made during the term as when made subsequent thereto; and therefore when an application has been made during the term, and the judgment of the court upon it has been rendered, the questions involved are res adjudicata, and after the adjournment of the term the court has no powor to reconsider its judgment, unless it is impeached as a nullity.

3. Plaintiff filed in the district court his bill for a new trial, and therein set forth, in substance, that he had previously sued the defendants in the same court on promissory notes given in October, 1861, for merchandise; that the defendants pleaded numerous fictitious pleas, and upon them obtained continuances by false affidavits, but on the immediate eve of the trial, and in the absence of the plaintiff, they filed for the first time the defense that the notes were payable in confederate money, which defense was wholly false and untrue; that defendants procured two witnesses to swear falsely in support of such confederate money defense, and plaintiff's counsel having no reason to anticipate such defense or false testimony, was taken by surprise thereby, and was unable to countervail it; that the verdict and judgment went against plaintiff on that defense, and in con sequence of plaintiff's absence, his counsel could not have his information and assistance in preparing a proper motion for a new trial, and his motion therefor was overruled; that plaintiff lived on the frontier, and his constant presence at home was necessary to the protection of his wife and home from the Indians, and he had no reason to anticipate such a false defense would be set up by the defendants; that since the trial he had discovered the original contract and invoices by which the amounts of the notes were fixed, and also sundry witnesses, by whom and which he could show that the notes were payable in lawful money, but which evidence was not adduced by him on the former trial for reasons already indicated. In support of his bill the plaintiff filed the written evidences referred to in it, and also the affidavits of sundry witnesses, negativing the defense of confederate money. The defendants' demurrer to the bill was sustained by the court below. Held, that the demurrer was properly sustained. The plaintiff should have made his showing upon his motion for a new trial in the original suit.

4. A new trial will not be granted on the ground of newly discovered evidence, when the object of such evidence is to impeach the testimony of a witness.

5. Plaintiff sued on notes, but judgment was rendered against him. After the term elapsed he filed his bill for a new trial, on the ground of newly discovered evidence, and fraud; but his bill was dismissed on demurrer. He now brings up both judgments by writs of error to this court. Held, that such practice is unprecedented, and will not be countenanced.

ERROR from Kendall. Tried below before the Hon. George H. Noonan.

This cause was a proceeding for a new trial in the case which immediately precedes it in this volume. The day on which this petition was filed is not noted in the transcript, but the citations to the defendants were issued on the tenth of January, 1870. The allegations of the petition were very full and specific. The third head-note, however, is believed to give a fair abstract of the most material of them; and the rulings of this court do not seem to require anything more. A perusal of the preceding case between the same parties will cast much light upon the present one.

The defendants excepted to the petition, on the ground that the matters complained of were already adjudicated in the original cause, and that the only remedy of the plaintiff was by appeal or writ of error therein. The case came to trial upon the exceptions at the June term, 1870, when they were sustained and the plaintiff's petition was dismissed. The judgment is now brought up by writ of error.

W. B. Leigh, for the plaintiff in error.--The proposition that the court erred in sustaining defendants' exceptions to plaintiff's petition for a new trial seems to be self-evident. The plaintiff had no other cause of complaint than the fact that there had been a suit, and a verdict and judgment against him. Res adjudicata, or not, was not the question, nor could it be on demurrer, being a question of fact. Defendants' demurrer and exceptions should have been directed to the question, “has the plaintiff shown good reason for a new trial of the original cause?” If defendants thought the plaintiff fell short of the requirements, their exceptions should have pointed out the defects. They failed to do so, yet the court sustained defendants' plea, evidently under the belief that however great the wrongs, however false the judgment and verdict, it could afford no relief; that the appellate court was the only tribunal to vindicate the cause of justice. Numerous decisions have beyond doubt conceded the right claimed by plaintiff for the district court. Testing the petition for a new trial, with exhibits and amendments and affidavits belonging to the same, by the rules laid down in Vardeman v. Edwards, p. 737, 21 Tex., or in Spencer v. Kinnard, p. 180, 12 Tex., and in numerous other cases, we think it will be found to be in compliance with the law.

The facts alleged by plaintiff, the facts stated in the affidavits, have not been traversed or denied, or even been modified by the defendants. Even a cursory reading of the record convinces the mind that those promissory notes were not payable in confederate money; that that currency was not mentioned, because, for the parties, it did not then exist; that no special currency was mentioned at all, because the occasion for the distinction between lawful money and confederate currency had not yet arisen. Is it probable that the cautious loyal German, distrustful of everything that emanated from the confederacy, stipulated in October, 1861, that those promissory notes, payable from one to two years hence, should be paid in confederate treasury notes--a currency of which he had not seen a single specimen as yet, and issued by a revolutionary government, whose downfall he daily expected? Be it remembered that martial law was not declared in San Antonio until about May, 1862, and that the chief object of the measure was to give a forced currency to the confederate money. It was barely possible that the defendants' plea of “confederate money” could be true, and that is the most that can be said of it. If there had been some real substance to defendants' plea, it would indeed have been easier to disprove it.

The province of demurrers and exceptions is to point out mistakes in the adversary's pleadings, so that he may, if he choose, amend them.

We think the record shows that the application for a new trial contained all the requisites of such an action. The case Dean v....