Overton v. Blum

Decision Date01 January 1878
CourtTexas Supreme Court
PartiesJOHN T. OVERTON v. LEON & H. BLUM.

OPINION TEXT STARTS HERE

APPEAL from Rusk. Tried below before the Hon. A. J. Booty.

Prior to May 18, 1874, the appellant and W. B. Henderson, partners in merchandise, were indebted to several merchants at Galveston. On that day these merchants made and signed between themselves and Overton & Henderson the following agreement:

We, the undersigned, creditors of Overton & Henderson, Overton, Texas, do hereby agree, each and all of us, to relinquish all claims against said firm, upon payment to us, within fifteen days from this date, of fifty per centum of the amount set opposite to our names. This agreement is not binding without the signature of all the creditors, set opposite their respective names. Galveston, May 18, 1876.”

Then follow the names of the creditors, with the amount due to each set opposite to each creditor's name. One of these creditors is the firm of Leon & H. Blum.

Within the fifteen days mentioned in that agreement Overton paid Leon & H. Blum fifty per cent. on their claim, and they executed their receipt for that amount, in full satisfaction of their claim.

Afterwards, Blum & Blum sued Overton & Henderson for the other half of the debt which had been compromised, charging that Overton had obtained the compromise from them by false representations that he could not pay more than fifty per cent. of the debts of Overton & Henderson, (which Overton denied,) and recovered judgment on the 18th of July, 1877.

Appellant filed his motion for a new trial, which was overruled July 28, and gave notice of appeal to the Supreme Court. Appellant made out a statement of the facts in evidence, and submitted that statement to the counsel of Leon & H. Blum on August 10. The term, by operation of law, ended August 11. The attorneys for Blum & Blum did not concur in the statement of facts, and that statement was handed to the presiding judge, who failed to act on it. On the next day, about twelve o'clock, when the court was about to adjourn, it was agreed by counsel on both sides that during vacation the counsel for defendants would submit their statement of facts to the judge, and from both statements he would make one, and return it in time for the transcript to be filed in the Supreme Court before the assignment for said District Court. The judge approved of that agreement, which was in writing and signed by both parties. In the transcript appears the statement of facts so prepared by Overton, and it shows a conflict of testimony on the issues joined.

The appellant filed his appeal bond, which was approved in time. No transcript of that suit was filed in this court, as there was no statement of facts for the court to act upon. At instance of appellees the case was, however, affirmed on certificate December 21, 1877. (48 Tex., 370.) December 5, and while the motion to affirm on certificate was pending, appellees sued out an execution on the judgment, under which a evy was made.

The appellant filed his bill of injunction to restrain the appellees from proceeding to collect the judgment above mentioned. A temporary injunction was granted December 15, 1877.

On motion of appellees the bill was sustained as to the levy made under the execution, and dismissed as to all other matters.

All the facts stated were contained in the injunction bill and supported by several affidavits. From the decree dismissing his bill Overton appealed, and assigns the following errors:

1. Dismissing plaintiff's bill on defendants' motion, because there is no sufficient cause, either legal or equitable, set out in said motion, or in the answers of said defendants, to have said bill dismissed.

2. Because the answers of defendants do not set out any particular fact in the statement of facts made out by the plaintiff, in the suit of Blum & Blum v. Overton & Henderson, but a general allegation that said statement of facts is incorrect.

3. The court erred in dismissing the plaintiff's bill, because the defendants do not deny, under oath, the material facts alleged in said bill as to the plaintiff having fully, without fraud or misrepresentation, complied with the agreement or compromise between plaintiff and his creditors, which agreement is set out in said bill. Neither do said defendants deny all the other equities in said bill.

James H. Jones and Martin Casey, for appellant.--The District Court has power to grant a new trial after the term of the court when the judgment was rendered, and to grant relief upon an original bill for fraud, accident, or mistake, or when it would be inequitable to permit the plaintiff, in the judgment sought to be set aside, to enforce that judgment. (Gross v. McClaran, 8 Tex., 344;17 Tex., 107;Spencer v. Kinnard, 12 Tex., 187;Vardeman v. Edwards, 21 Tex., 740;Pratt v. Keils, 28 Ala., 390;Saunders v. Jennings, 2 J. J. Marsh., 513; High on Inj., sec. 116.)

I. The causes assigned in the motion to dissolve the injunction and dismiss the bill are, because of want of equity in the bill; because the agreement of counsel, that the presiding judge should make out a statement of facts in vacation, is not warranted by law; because of insufficiency of the affidavit to the petition; because plaintiff does not state that he presented his statement of facts to the judge before the adjournment of the court; because the plaintiff did not file a transcript and a copy of the evidence in the Supreme Court. The answer (not sworn to) asserts that all matters in plaintiff's bill are res judicata, the judgment being affirmed on certificate by the Supreme Court; (sworn to) that plaintiff's motion for a new trial was overruled July 28, 1877; that said term did not close until August 11, 1877; that plaintiff had ample time to prepare and present to defendants' counsel a statement of facts, which he did not until the evening of August 10, 1877; that plaintiff did not make out a full and fair statement of all the facts; that the facts were too numerous for defendants' counsel to be made out by them during the remaining time of the court.

II. As to dismissing the bill on the answer of defendants, plaintiff assumes that the answer must deny all the equities in the bill. (Burnley v. Cook, 13 Tex., 586;York v. Gregg, 9 Tex., 93;Smith v. Power, 2 Tex., 57; 3 Danl. Ch. Pr., p. 1831, note 1, and authorities there cited; Beall v. Blake, 10 Ga., 459.)

III. When a compromise is made with a knowledge of all the facts, payment made by the debtor and a receipt given, the debtor is not further liable. (2 Pars. on Cont., 618, note x, and authority cited in that note.)

IV. The answer must deny all the material allegations in the bill, under oath, or the injunction will not be dissolved.

The agreement to compromise between the appellant and his creditors was copied into the bill. Plaintiff says he paid defendants, as provided in that agreement, within the time specified, and obtained the following discharge:

+-------------------------------------+
                ¦“No. 1075.¦GALVESTON, May   28, 1874.¦
                +-------------------------------------+
                

Received from Messrs. Moody & Jamison fourteen hundred and twenty 6/100 dollars, in full payment of our claim against Messrs. Overton & Henderson, amounting to $2,840.13, as per compromise agreed upon by creditors.

+-------------------------------+
                ¦$1,420.06 cy.¦LEON & H. BLUM.” ¦
                +-------------------------------+
                

Plaintiff says that with said compromise he complied faithfully and without fraud or deceit. None of these allegations are denied by the answer, except the general denial, not sworn to. (Burnley v. Cook, 13 Tex., 586;Dearborn v. Phillips, 21 Tex., 451.)

V. To enforce the judgment of affirmance on certificate by the defendants would be a fraud upon the plaintiff, under the facts and circumstances in this case; and every judgment obtained by fraud should be set aside, though rendered by the highest court of judicature in the State. (Kellum v. Smith, 18 Tex., 849; Kerr on Frauds, 294; Insurance Co. v. Hodgson, 7 Cranch, 332; High on Inj., sec. 116.)

R. M. Wynne, for appellees.

I. After the District Court has refused a new trial it has no power, at a subsequent term and upon an original proceeding, to reconsider its judgment overruling the motion for a new trial, unless the judgment be impeached as a nullity. The party's remedy is by appeal or error. (Grah. & Wat. on New Trials, 1463; Metzger v. Wendler, 35 Tex., 385;Vardeman v. Edwards, 21 Tex., 740.)

II. In no case will the courts grant the relief sought by appellant in this extraordinary proceeding unless he shows clearly that he has been guilty of no negligence. (21 Tex., 653; Brown v. Jones, 1 J. J. Marsh., 470.) The whole matters set up by appellant's bill are res judicata. (Overton v. Blum, 48 Tex., 370;9 Tex., 128;20 Tex., 790;4 Tex., 104;22 Tex., 177;1 Johns. Ch., 189.)

This case of Overton v. Blum had been affirmed by this court before appellant's application for a new trial herein was heard by the District Court.

III. It would be a most extraordinary interposition on the part of a court of equity to set aside a judgment obtained after a full and fair investigation upon the merits before a court of competent jurisdiction, and affirmed by the court of last resort, merely because appellant failed, by his own negligence, to get a statement of facts to have the judgment revised in the Supreme Court. (Freem. on Judge., sec. 508; 23 Wis., 249.)

IV. There are exceptions to the rule, as stated by appellant, that only where the answer denies the circumstances upon which the equity is founded will the injunction be dissolved. (Smith v. Power, 2 Tex., 57.)

Appellant's sworn answer denied the facts upon which appellant sought relief. Where an injunction is dissolved on motion for insufficiency, it would be immaterial that the answer was not sworn to at all. (Carter v. Griffin, 32 Tex., 214.)

V. It is not error to dismiss the bill on dissolution of injunction, unless the records show that the appellant...

To continue reading

Request your trial
76 cases
  • Shary v. Eszlinger
    • United States
    • North Dakota Supreme Court
    • March 2, 1920
    ...to the extent of holding that fraud may be urged as a legal defense against the judgment. See Dickenson v. McDermott, 13 Tex. 248; Overton v. Blum, 50 Tex. 417; Byars v. Justin, Tex.App. Civ. Cas. (Willson) 603; Nevins v. McKee, 61 Tex. 412; Harn v. Phelps, 65 Tex. 592; Cayce v. Powell, 20 ......
  • Bridgman v. Moore
    • United States
    • Texas Court of Appeals
    • September 18, 1947
    ...Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100; Taylor, Knapp & Co. v. Fore, 42 Tex. 256; Roller v. Wooldridge, 46 Tex. 485; Overton v. Blum, 50 Tex. 417; Browning v. Pumphrey, 81 Tex. 163, 16 S.W. 870; Brown v. Clippinger, 113 Tex. 364, 256 S.W. 254; Southern Surety Co. v. Texas Oil Cle......
  • Garza v. Attorney General
    • United States
    • Texas Supreme Court
    • June 9, 2005
    ...addressed "below" by our sister court included the need to present a meritorious defense. The court relied upon Overton v. Blum, 50 Tex. 417, 423-24 (1878), which held that the trial court acted properly in dismissing the bill of review since that appellant had failed to show "that he has s......
  • Empire Gas & Fuel Co. v. Noble
    • United States
    • Texas Supreme Court
    • March 4, 1931
    ...warranted by pleading and proof on the entire case. Mussina v. Moore, 13 Tex. 8; Seguin v. Maverick, 24 Tex. 526, 76 Am. Dec. 117; Overton v. Blum, 50 Tex. 417; McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870; Robbie v. Upson (Tex. Civ. App.) ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT