Taylor, Knapp & Co. v. Fore

• Decision Date: 01 January 1874
• Citation: 42 Tex. 256
• Court: Texas Supreme Court
• Parties: TAYLOR, KNAPP & CO. v. D. W. FORE.

42 Tex. 256

TAYLOR, KNAPP & CO.

v.D. W. FORE.

Supreme Court of Texas.

1874.

ERROR from De Witt. Tried below before the Hon. Henry Maney.

Philips, Lackey & Stayton, for plaintiff in error

W. R. Friend, for defendant in error.

ROBERTS, C. J.

This is a suit by Fore to set aside a judgment by default rendered against Fore & Shelton, partners, on a note executed by them.

After the suit on the note was brought by Taylor, Knapp & Co., Fore made his application to become a bankrupt, and Taylor, Knapp & Co. proved up their claim, to wit, this note, then in suit, in the Bankrupt Court. Fore obtained his discharge in bankruptcy; shortly after which, Taylor, Knapp & Co. took a judgment by default, no answer having been filed by the defendants therein, Fore & Shelton, and Fore not having pleaded his discharge.

Upon these facts Fore obtained an injunction to stay the execution issued upon the judgment, and sought to have the judgment as to him set aside and annulled, and Taylor, Knapp & Co. enjoined from enforcing the same. Taylor, Knapp & Co. filed exceptions and answer, and the exceptions not being sustained, a trial was had upon the merits of the petition for injunction, which resulted in a verdict as follows, to wit:

“We, the jury, find a verdict in favor of the plaintiff.”

Upon this verdict there was a judgment in regular form, concluding as follows: “that the judgment rendered in the County Court of De Witt county, on the 13th day of April, 1869, in Cause No. 39, styled Knapp & Co. v. Fore & Shel ton, be set aside, and the same is hereby declared null and void as to the defendant Daniel W. Fore. And it appearing to the court that the said Daniel W. Fore having now paid into court all costs adjudged in said Cause No. 39, in the County Court, as well as the costs herein incurred, it is ordered by the court that the said Daniel W. Fore be now permitted to plead his discharge in bankruptcy, obtained by him in the United States District Court for the Eastern District of Texas, at Galveston, 4th day of January, 1869, in said Cause No. 39, above styled.”

Taylor, Knapp & Co. sued out a writ of error to have this judgment revised, and defendant in error now moves to dismiss the writ of error because the judgment is an interlocutory and not a final judgment.

Such a judgment was regarded as interlocutory, and the appeal on that account dismissed in the case of Goss v. McClaren, 8 Texas R., 342, the opinion being delivered by Justice Lipscomb. The same decision was made in Stewart v. Jones, 9 Texas R., 69. These decisions did not call in question the right to grant a new trial, but decided that such new trial must be had before the judgment could be considered final.

When the case of Goss v. McClaren came up again, an opinion delivered by Justice Wheeler suggests a doubt as to its being an interlocutory judgment, without undertaking to change the rule by any positive decision, it being unnecessary. (17 Texas R., 114.) Other decisions since that have doubted likewise.

Chancellor Kent said that “anciently courts of equity exercised a familiar jurisdiction over trials at law, and compelled the successful party to submit to a new trial, or to be perpetually enjoined from proceeding on his verdict. But the practice has long since gone out of...