Smith v. McDaniel
| Decision Date | 04 November 1914 |
| Docket Number | (No. 5406.) |
| Citation | 170 S.W. 1070 |
| Parties | SMITH v. McDANIEL. |
| Court | Texas Court of Appeals |
Action to foreclose a vendor's lien by R. McDaniel against Sallie Smith. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
J. E. Yeager, of Waco, for plaintiff in error. Witt & Saunders, of Waco, for defendant in error.
R. McDaniel, the defendant in error, sued Sallie Smith, the plaintiff in error, and on September 13, 1912, obtained a judgment foreclosing a vendor's lien on certain real estate which was sold under an order of sale and bought in by McDaniel. On May 14, 1913, Sallie Smith filed a motion seeking to have the judgment and sale set aside. The trial court sustained a general demurrer to her motion, and she attempted to appeal. It seems, however, that the minutes of the court did not show that notice of appeal had been given, and therefore she instituted a proceeding, alleging that notice of appeal was in fact given, but had not been entered of record, and asking to have it entered nunc pro tunc. That motion was overruled, whereupon Sallie Smith, within the time allowed by law, sued out a writ of error from the original judgment; and in prosecuting that writ she has assigned error upon the action of the trial court in sustaining the general demurrer to her pleading, seeking to have the judgment against her set aside and the sale thereunder annulled.
Counsel for defendant in error, on the day the case was submitted, filed several motions, all of which come too late, except the motion to dismiss for the want of jurisdiction.
On that point it is contended that the plaintiff in error should have prosecuted an appeal from the action of the trial court in refusing to correct its minutes, and that, until such appeal was prosecuted and disposed of, this court has no jurisdiction of a writ of error from the original judgment. We overrule that contention, and hold that the plaintiff in error had the right to abandon her attempted appeal and bring the original judgment to this court by writ of error; no motion to affirm on certificate having been made in the meantime.
It is well settled in this state that a losing litigant may obtain a rehearing after the term, when it is shown by specific allegation and proof that the judgment was obtained by fraud, mistake, or accident; that the complaining litigant has a meritorious cause of action or defense; that he has not been guilty of negligence in failing to present his defense, or in failing to ask for a new trial during the term; that there is reason to believe that a different result will be attained; and that, unless the judgment be set aside, he will sustain substantial and irreparable injury. Gross v. McClaran, 8 Tex. 341; Spencer v. Kinnard, 12 Tex. 180; Cook v. De la Garza, 13 Tex. 431; Goss v. McClaren, 17 Tex. 107, 67 Am. Dec. 646...
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