Smith v. Rogers

• Decision Date: 15 June 1939
• Docket Number: No. 10951.,10951.
• Citation: 129 S.W.2d 776
• Parties: SMITH et al. v. ROGERS, District Judge, et al.
• Court: Texas Court of Appeals

Page 776

129 S.W.2d 776

SMITH et al. v. ROGERS, District Judge, et al.

No. 10951.

Court of Civil Appeals of Texas. Galveston.

June 15, 1939.

Original proceeding by Eleanor T. Smith and others against Max M. Rogers, District Judge, and Covey A. Beard, receiver, and others, for a writ of prohibition against the respondent judge and for an injunction against Covey A. Beard, receiver, and others.

Writs of prohibition and injunction refused.

Geo. N. Lusch and Walter T. Keith, both of Houston, for relators.

McComb & Davis, of Conroe, for respondents.

CODY, Justice.

Relators seek a writ of prohibition against respondents, the Hon. Max M. Rogers, Judge of the District Court of Grimes County, and an injunction against Covey A. Beard, receiver, and against the attorneys for such receiver, to prevent any further proceedings in cause No. 13,118, now pending in that court.

It is made to appear that on June 21, 1938, in cause No. 13,010 on the docket of the district court of Grimes County, a judgment by default was taken by plaintiffs therein, who are relators here, against Covey A. Beard, receiver, Empire Lease and Royalty Company, cancelling a certain oil, gas and mineral lease, and awarding damages to plaintiffs; and further, that Covey A. Beard, receiver, brought up to this court by writ of error said cause, which is styled "Covey A. Beard, Receiver, Plaintiff in Error vs. Eleanor Smith et al., Defendants in Error," and is No. 10,915 on the docket of this court, having been filed herein on March 3, 1939. On February 10, 1939, Covey A. Beard, receiver, filed the cause which relators are here seeking to have prohibited from further proceedings. From an examination of plaintiffs' petition in cause No. 13,118, it is apparent that the purpose of that suit is to seek to have the judgment which was rendered in cause No. 13,010 set aside in so far as it awards damages to plaintiffs, on the grounds that the same was obtained by fraud, accident, or mistake, that is to say, the purpose of the suit is to attack the judgment by a bill-of-review.

As was stated by this court in Hacker v. Hacker, Tex.Civ.App., 110 S.W. 2d 923, 924, "A bill of review is not a mere alternative means, to an appeal or a writ of error, to bring a case before an appellate court for review. It is resorted to, of course, only where a judgment has become final, and the party prevailing has acquired vested legal rights based on such judgment. It is therefore addressed to the equitable powers of the court. * * * `A court of equity will not interfere to set aside a judgment and grant a new trial, except upon a showing of strict diligence in the presentation of the cause and upon proof that, after doing all that such diligence requires to be done, he has been deprived by fraud, accident, mistake, or other uncontrollable circumstances, of properly presenting his case upon the trial. And if, after it has become apparent that he must fail in his suit, he fails to avail himself of all means at his disposal to arrest the judgment and to exhaust every legal remedy to vacate it after it has been rendered, relief will be denied. That the complainant has a meritorious case, and that he has been compelled to suffer an adverse judgment by circumstances wholly beyond his control, are the fundamental grounds upon which the equity to...