Spencer v. Kinnard

Decision Date01 January 1854
Citation12 Tex. 180
CourtTexas Supreme Court

In a petition for a new trial, after the adjournment of the Court, it must be shown, first, that injustice was done; and, second, a satisfactory reason must be shown why the proper defense was not made on the trial, and why a motion for a continuance or new trial was not filed at the proper time. (Note 43.)

See this case for circumstances which were held insufficient to sustain a petition for a new trial and an injunction, filed after the adjournment of the Court.

It is no part of an attorney's duty to make affidavits, and therefore where the absence of the client, when he should have been present, is accounted for, it cannot be answered that his attorney was present. (Note 44.)

Appeal from Harrison.

D. J. Jennings and M. J. Hall, for appellee. The bill contains no sufficient reason for the interference of the Court. It goes on to relate what the appellant calls the facts of the case, reciting minutely the circumstances attending the original trial, at least such of them as he chooses to refer to; but he does not pretend to say that these facts were unknown to him, or could not have been used by him as a defense. On the contrary, he admits his knowledge of every fact involved in the case on the trial, and the only reason given for the equitable interference of the Court is, “That he was unable to make a defense to the said suit at the last Term of the District Court, in consequence of a severe fit of illness from which he was then suffering, and the absence of witnesses who had been regularly subpœnaed, and avers that he will at the next Term of the District Court be able fully to establish all the facts and allegations set forth in his petition.”

He does not state that he employed any counsel or used any diligence to prepare for trial, although he admits in his bill that the cause had been pending in Court nearly twelve months before the trial, and that one term of the Court had passed without a trial. He does not allege whether he was ready for trial, or that not being ready he or his counsel made any motion for a continuance, or that after the trial he made a motion for a new trial. It would seem that the plaintiff was designedly silent on those points, to avoid a confession of facts which he knew must condemn him. But with this suppression of facts and the expression of such as he chooses to swear about, the bill contains nothing in substance that could authorize the equitable interposition of the Court. Before Courts of Law were in the exercise of their present liberal jurisdiction over the subject of new trials, the parties were frequently forced into equity to be relieved from oppressive verdicts. (3 Blk. Com., 388.) Since, however, that jurisdiction has been well established and freely exercised on equitable as well as legal grounds, the party failing in his application at law for a new trial will not be relieved in equity, at least upon the same merits already discussed, and fully within the discretion of the Court of Law. In the case of Simpson v. Hart, 1 Johns. Chan. Rep., 91, Lord Redesdale said, “That he could not find any ground whatever for a Court of Equity to interfere because a party had not brought evidence which was in his power at the trial.” It is now the settled doctrine of the English Chancery Courts, that a party is not entitled to relief against an oppressive judgment, on the ground of its being contrary to equity, unless he was ignorant of the fact in question, pending the suit, or it could not have been received as a defense. (Williams v. Lee, 3 Atkin., 223.) When relief is sought in this form, after a continuance, a new trial, and the right of appeal have all failed, the question is, according to the case just cited, not whether the party was prevented by indisposition from defending himself, but whether he at the time knew the facts relied on to sustain his application for relief. In the case of Smith v. Lowry, 1 Johns. Chan. Rep., 320, the Chancellor said, Applications to this Court for a new trial after a verdict at law, are very rare in modern times, since Courts of law exercise the same jurisdiction and to the same liberal extent.” In the case of Sorey v. Young, Prec. in Chan., 193, the bill for a new trial was dismissed, though the plaintiff had discovered, since the trial, that the principal witness against him was interested, and the Lord Keeper observed, “that new matter may, in some cases, be ground for relief, but it must not be what was tried before, nor when it consists in swearing only, will I ever grant a new trial, unless it appears by deed or writing, or that a witness on whose testimony the verdict was given was convicted of perjury.” The case of Floyd v. Jayne, 6 Johns. Chan. Rep., p. 480, is a strong case in point. The bill was for a new trial after a verdict at law. The ground of application was the discovery since the verdict of testimony to prove the payment of the note sued on, and the want of power in that Court (the Common Pleas) to grant a new trial, otherwise than for irregularity, none of the Judges being of the degree of Counsellor in the Supreme Court. In refusing the application the Court said: “It is the settled doctrine and practice of this Court, as well as of the Courts of Law, that a party is not entitled to relief after verdict upon testimony which, with ordinary care and diligence, he might have procured and used upon the trial at law.” Tested by the rule in this case, the question would be not whether he did defend himself, but whether with ordinary diligence and attention he could have defended himself. It was not sufficient for him to sit down and order subpœnaes for his witnesses. He should tender to them their necessary expenses, and then if they failed to attend, had attachments issued for them. He shows no diligence and is entitled to no relief.

In Leguen v. Gouveneur and Kemble, 1 Johns. Cas., 436, which, from the ability of the counsel engaged (Hamilton, Harrison, and Burr, for the appellant, and Livingston, Troup, and Gouveneur Morris, for respondents) and the high character of the Court, may be considered the leading case on this subject, Mr. Justice Ratcliffe said: “The general principle, that the judgment or decree of a Court possessing competent jurisdiction shall be final as to the subject matter thereby determined, is conceded on both sides, and can admit of no doubt.” The principle, however, extends further. It is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. (See Prec. in Chan., 221; 3 Atk., 224; 1 Vern., 176; 2 H. B. R., 414; 7 Term R., 269; 2 Cases in Chan., 95; Cha. Rep., 243; 2 Burr., 1009.) Now, it is scarcely possible that the plaintiff was severely indisposed for nearly twelve months during the pendency of the suit. If not, it was his duty to employ counsel and carry his witnesses, that they (the counsel) might be acquainted with the facts, in which event the personal attendance of the plaintiff would have been unnecessary.

It cannot be questioned that, notwithstanding his “severe indisposition,” he might have had determined every question involved in the case. The reasons in favor of this extent of the rule appear to me satisfactory; they are founded in the experience and propriety of silencing the contentions of parties, and of accomplishing the ends of justice by a single and speedy decision of all their rights. It is evidently proper to prescribe some period to controversies of this sort, and what period can be more fit and proper than that which affords a full and fair opportunity to examine and decide all their claims.

A different rule would tend to unsettle all the determinations of law and open a door for infinite vexation. He also quotes Lord Hardwick as having said, in regard to a bill of review, which is analogous to the case under consideration, “that there are always two points to be attended to on a petition for that purpose:

1st. To show that the new matter upon which such bill is sought has come substantially and materially to the knowledge of the party or his agent since the time of the decree in the former cause.

2d. That it is probable such new matter is relevant.”

“Again: it is held that forgetfulness or negligence of parties, under no incapacity, is no foundation for a bill of review; or matter already settled, or which might have been put in issue and settled in the original case, shall never be drawn into examination on a bill of review.”

In every light, therefore, in which this matter can be seen, whether we view it as considered by Courts of law with regard to their own determinations, or by Courts of Equity with regard to their own decrees, or in relation to the interference of the latter with the judgments of the former, the same rules and the same principles prevail. In his able opinion in ...

To continue reading

Request your trial
15 cases
  • Stanley v. Spann
    • United States
    • Texas Court of Appeals
    • May 8, 1929
    ...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; Caperton v. Wanslow, 18 Tex. 125; Fisk v. Miller,......
  • Sanger v. McDonald
    • United States
    • Arkansas Supreme Court
    • April 22, 1907
    ...for an attorney to volunteer as a witness for his clients except where it is imperatively necessary to prevent a miscarriage of justice. 12 Tex. 180; 1 Sandf. (N. Y.) 607; 8 Pa.St. 520; 48 Ark. 106. And when appellants objected to this argument, the objection was overruled; hence it went to......
  • Smith v. McDaniel
    • United States
    • Texas Court of Appeals
    • November 4, 1914
    ...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; Caperton v. Wanslow, 18 Tex. 125; Fisk v. Miller,......
  • Tullis v. Scott
    • United States
    • Texas Supreme Court
    • January 1, 1873
    ...another v. Wortham, 4 Tex. 381;Niblett v. Shelton, 28 Tex. 548;Power v. Gillespie, 27 Tex. 370;Vardeman v. Edwards, 21 Tex. 737;Spencer v. Kinard, 12 Tex. 180;Cook v. De la Garza, 13 Tex. 431.OGDEN, P. J. This action was originally brought against R. Porter, sheriff of Robertson county, Tex......
  • 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