Mussina v. Moore
| Decision Date | 01 January 1854 |
| Citation | 13 Tex. 7 |
| Parties | MUSSINA v. MOORE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Fayette. Original suit brought by the appellee at the Spring Term, 1849, of the District Court of Fayette county. Judgment rendered at Fall Term, 1849. Petition of review filed by appellant, July 16th, 1851.
Fred. Tate, for appellant.
Webb & Harcourt, for appellee.
In this case it is alleged in the appellant's petition that appellee had instituted a suit against petitioner and obtained judgment, on which an execution had been sued out and petitioner's land sold; that petitioner was sued as a non-resident debtor. It alleges that petitioner was, at the time of the institution of the suit against him, and had been for many years before, a citizen of the State and a resident of Cameron county; that petitioner had no notice of the pendency of the suit, nor of the proceedings against him; that they were ex parte, and that he had a good defense against the action or suit, and could have made such defense if he had had notice of the suit; and, among a great many other matters, prays that the judgment may be opened, and that he may have an opportunity to make his defense.
The defendant demurred; and his demurrer was sustained by the Court below.
The suit is designated as a bill of review, and it is presumed that is was regarded by the Court below as a bill of review, according to its strict meaning in Chancery practice.
The provision of the statute (Hart. Dig. Art. 783) is that “when a judgment has been rendered in any suit, on notice, or service by publication only, and on ex parte hearing, the party defendant may, at any time within two years from the rendition of such judgment, file his petition of review for the reversal thereof in the Court rendering the judgment,” &c. A strict literal construction of the statute would limit the remedy to cases or suits governed by the principles of equity, and would deprive by far the greater number of defendants brought into Court by publication of notice of the benefit of its provisions. We therefore believe that the term used in the statute should be construed in the more enlarged sense of a rehearing, or new trial; and that if the petition discloses sufficient grounds for a new trial, that it entitles the party to the relief sought, on establishing the truth of the facts alleged. The grounds disclosed in the original petition in this case, are, that the petitioner was a citizen of the State for a long time, and at the time of the ex parte proceedings against him had been for some years a...
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Dunlap v. Wright
...things, that he had a good defense — a meritorious defense — to plaintiff's cause of action. Kitchen v. Crawford, 13 Tex. 516; Mussina v. Moore, 13 Tex. 7; Snow et al. v. Hawpe, 22 Tex. 171; Schleicher v. Markward, 61 Tex. 99; Strickland v. Baugh (Tex. Civ. App.) 169 S. W. The trial court i......
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Hickman v. Swain
...as those which govern similar applications made during the term. We have no bills of review, strictly and technically speaking (Mussina v. Moore, 13 Tex. 7, 8); nor original bills in chancery, for the granting of new trials at law; for having no court of chancery, as distinct from a court o......
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Houston Oil Co. v. McCarthy
...a motion for new trial, permitted in such cases by virtue of the statute, to be filed and heard after adjournment of the term." Mussina v. Moore, 13 Tex. 7; Wiseman v. Cottingham, 107 Tex. 68, 174 S. W. 281; Miles v. Dana (Tex. Civ. App.) 136 S. W. 848; Glaze v. Johnson, 27 Tex. Civ. App. 1......
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Collum v. Anderson, 18194
...to cover the purchase price paid by Collum when he purchased the land at the sheriff's sale. As early as 1854 our Supreme Court in Mussina v. Moore, 13 Tex. 7, said that in an equitable proceeding such as a bill of review seeking to set aside a prior judgment for lack of proper service it w......