Nevins v. McKee

• Decision Date: 18 April 1884
• Docket Number: Case No. 4960.
• Citation: 61 Tex. 412
• Parties: JOHN NEVINS v. JAMES MCKEE ET AL.
• Court: Texas Supreme Court

61 Tex. 412

JOHN NEVINS

v.JAMES MCKEE ET AL.

Case No. 4960.

Supreme Court of Texas.

Apr. 18, 1884.

APPEAL from Grayson. Tried below before the Hon. Richard Maltbie.

Nevins, who brought this suit, was garnished in the former suit, and, his answer being controverted, a judgment was rendered against him. He did not appear in person in the former case, nor did his attorney, and the ground of relief here sought was that the debt was really one owing to another than the plaintiff in the former proceeding, a fact which he was prevented from showing on account of an understanding between his attorney and himself as to the scope and extent of the attorney's employment.Woods, Wilkins & Cunningham, for appellant, cited: Dobbins v. Wybrants, 3 Tex., 457;Freeman v. Miller, 53 Tex., 372, and Dowell v. Winters, 20 Tex., 797.

Hare & Head, for appellee, cited: Freeman v. Miller, 51 Tex., 443; Johnson v. Templeton, 2 Tex. L. Rev., 269; Drake on Attach. (5th ed.), 587-670; Freeman on Judgments, 112.

WILLIE, CHIEF JUSTICE.

The object of the present suit was to set aside a judgment duly rendered in a garnishment proceeding against Nevins, to retry the issue between the parties determined in that cause, and have a decision made as to whether the plaintiff in that judgment, or another party who claimed to own the note, was entitled to recover against the garnishee.

In fact it was an attempt by petition, filed after the adjournment of the term of the court at which the judgment was rendered, to obtain a new trial of the cause which had resulted in such judgment.

A court of chancery has power to grant such relief, but it will not do so except upon facts which show the clearest and strongest reasons for its interposition.

It was held by this court in Johnson v. Templeton, 2 Tex. L. Rev., 269 (60 Tex., 238), that it is not sufficient to show that injustice has been done, or that the plaintiff had a good defense which he was prevented from making upon the trial. But he must further show that he has not resorted to chancery because of any inattention or negligence on his part. He must show a clear case of diligence as well as of merit; that he has a good defense which he was prevented from making by fraud, accident or the acts of the opposite party, wholly unmixed with any fault or negligence on his part.

Here it is not pretended that the appellant was deprived of his defense by the fraud of any one, or by any act chargeable to the plaintiff in garnishment. If...