Prewitt v. Perry

• Decision Date: 01 January 1851
• Citation: 6 Tex. 260
• Parties: PREWITT v. PERRY.
• Court: Texas Supreme Court

6 Tex. 260

PREWITT

v.PERRY.

Supreme Court of Texas.

1851.

Any fact that would be good cause for enjoining a judgment would, if it existed before judgment, have been a good defense to the action; and if such defense was known to the defendant or might have been discovered by ordinary diligence on his part, and he failed to avail himself of it, he cannot afterwards make it the foundation of an application to enjoin the judgment. (Note 45.)

The case of Cartwright v. Roff (1 Tex. R., 78) cited and approved.

Error from Bowie. Suit was commenced by the plaintiff in error against the defendant on a promissory note. The defendant appeared and pleaded, 1st, that the matters set forth in plaintiff's petition were not sufficient to entitle him to a judgment; 2d, that he was not indebted to the plaintiff; and 3d, that the consideration on which the note sued on was given had wholly failed. The cause was continued several terms, and the defendant at last withdrew all defense and let judgment be entered up by nil dicit for the amount of the note sued on, with interest and costs. The defendant then applied to the judge of the district for an injunction. In his petition he alleged that the note sued on had been procured by the fraudulent representations of the plaintiff. He further alleged that the parties had referred the matter in dispute in relation to the note sued on, and that there had been an arbitration and an award pursuant to the submission; that the arbitrators had awarded to the plaintiff in full satisfaction an amount much less than called for by the note, and had awarded to the plaintiff his costs of the court in the suit.

The judge directed that an injunction should issue on the petitioner depositing with the clerk of the court the amount of the award, to be subject to the order of the plaintiff in the original suit. The plaintiff in error, who was the defendant in the injunction, demurred to the petition; the demurrer was overruled. He then answered the bill, denying all fraud or misrepresentation, but admitting the agreement to arbitrate and the award of the arbitrators, and alleging that the award was unjust, and that he was much intoxicated at the time the arbitrators met, and unprepared with his evidence. On the bill and answer the court perpetuated the injunction for the excess of the judgment over the award of the arbitrators.

J. H. Rogers, for plaintiff in error. The defendant in error should have pleaded the facts which he now seeks to make the basis of an injunction as a defense to the former action. Having suffered judgment in that action to go against him by nil dicit, he waived all defenses that were known to him or that might have become known to him by the exercise of ordinary diligence on his part. (Cartwright v. Roff, 1 Tex. R., 78.)

M. D. Rogers, for defendant in error. That the grounds on which the defendant in error obtained the injunction might have been pleaded in the first suit will not be denied; but that a failure to do so does take from a court of equity its jurisdiction by bill we do deny. (6 Eng. Ch. R., 362, and cases there cited.) The plaintiff in error reposes upon the decision in the case of Cartwright v. Roff, (1 Tex. R., 78.) We think there is no analogy in the two cases, the facts being very different. In that case appellant was wholly in error. In this case defendant in error has in good faith always been ready to and as far as he could performed his part of the agreement.

LIPSCOMB, J.

The only grounds of relief presented by the petitioner are the fraudulent representations of the plaintiff in...