Rodriguez v. Espinosa

• Citation: 25 S.W. 669
• Parties: RODRIGUEZ v. ESPINOSA et al.
• Decision Date: 28 February 1894
• Court: Texas Court of Appeals

25 S.W. 669

RODRIGUEZ v. ESPINOSA et al.

Court of Civil Appeals of Texas.

February 28, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Petition by C. Rodriguez against Guadalupe Espinosa and others to set aside a default. Judgment for defendants. Plaintiff appeals. Reversed.

Edward Dwyer and S. G. Newton, for appellant. W. E. Cox and I. B. Henyan, for appellees.

JAMES, C. J.

This was a suit brought by appellant to set aside a judgment entered at a preceding term of the district court, plaintiff alleging facts showing an apparently meritorious defense to said suit; that his warrantors were parties to said suit, and agreed with petitioner to defend the title to petitioner's land; that on April 12, 1892, said warrantor came to San Antonio to attend the court, to answer in said cause "Ready," and prepared to do so, when he was informed by the attorney representing the plaintiff that the suit had been settled and dismissed, and for him to go home and do nothing more in the matter; that the said warrantor relied and acted upon the statement, and informed this appellant thereof, and thereupon nothing further was done by either towards making a defense; that on same day a judgment by default, with a writ of inquiry, was taken against the defendants, and on June 11, 1892, the warrantor was dismissed, and final judgment taken against this appellant for his portion of the land; and that he was ignorant of the entry of either of said judgments; and a writ of possession in the hands of the sheriff is asked to be enjoined, and for a decree in favor of appellant for the land.

It appears that one issue was submitted to the jury, viz: "Was the judgment in controversy obtained through fraud? Answer `Yes' or `No.'" The verdict was in the negative, and judgment was entered accordingly. Complaint is made in respect to a portion of the court's charges in submitting the issue of fraud, which was as follows: "If you believe from the testimony that F. Herr, as the warrantor of plaintiff, agreed to conduct his defense, and W. E. Cox, plaintiff's attorney, knowing the fact, willfully stated to him that said suit had been dismissed, whereby a defense was not made, and said representation was made with the purpose and intent to deceive said Herr and his warrantee, and prevent them from making a defense, and they acted upon the representations so made, and honestly believed them to be true, and were deceived thereby, and for that reason failed to make a...