39 Tex. 132 | Tex. | 1873
In 1868, A. J. Hough obtained a judgment in a justice’s court against Paul Walnitzch for the
We think this was error. The law had been complied with, the motion for a new trial had been filed within two days, and it may be presumed that the motion was regularly entered on the motion docket, as nothing appears to the contrary. The opposite party was thereby notified that a new trial would be sought, and it was his duty, if he wished to resist the motion, to watch the same until it should have been finally disposed of. The object of the law in requiring the motion to be filed within the two days is most evident. Parties are not expected, and should not be required, to remain in attendance upon the court during the whole term, after their business has been disposed of, unless they shall be notified within a reason
This seems to be the view of the statute taken by this: court in Sweeney v. Jarvis, 6 Texas, 44, in which it is said: “The object of the statute is simply to require the party making the motion by written specification to-direct the attention of the court and the opposite party to that one or more of- the several grounds recognized by law on which he proposes tó base his application for a
Subsequently ah original suit by bill in equity for a new trial was filed in the lower' court, in which the whole facts of the former suit were clearly set out, and the grounds upon which a new trial was sought. The grounds are, in part, surprise in the former trial, perjury on the part of a witness against the petitioner, by reason of which petitioner had been greatly damaged, and which perjury was not discovered on the former trial in time to make it available in his application for a new trial in the former suit. We think the showing in both of these particulars are sufficient to entitle the party to-a new trial in the original suit.
It would seem that if a judgment be obtained by fraud or false swearing, such fraud or false swearing would wholly vitiate the judgment. And where the fraud or false swearing had not been discovered before the expiration of the two days after the rendition of the verdict, or where a party, from any cause, had been prevented from setting up the fraud or false swearing as a cause for a new trial within the time prescribed by law, equity would require that he should be permitted to set up those facts in an original bill for a new trial, and if he presented a sufficient ground to annul the judgment, a new trial should be awarded. We think the bill in this case showed a sufficient equity to entitle the party to a
The judgment is therefore reversed and the cause remanded, with instructions that a new trial be awarded.
Reversed and remanded.