53 Tex. 372 | Tex. | 1880
This suit is an outgrowth from that of Freeman v. Miller, heretofore decided by this court, and reported in 51 Tex., 443.
In that case the garnishee, Freeman, having failed to make full answer, and no sufficient excuse appearing of record, judgment was rendered against him below, which, upon appeal, was affirmed.
In the opinion, however, it is said, “that if from accident, mistake or other cause, injustice has been done the garnishee, he himself must take the initiative, and by motion made in due time, or other proper proceedings, seek to set aside the judgment.” 51 Tex., 448.
The present proceeding is instituted in the nature of a bill in equity to set aside the former judgment.
The law does not seek to impose the payment of the debt due the principal debtor upon the garnishee as a penalty for his failure to make full answer, but proceeds upon the theory that, by not having made such answer, he tacitly admits that he has the means in his own hands, or knows of property by which such payment could be made. R. I. Ex. Bank v. Hawkins, 6 R. I., 198.
The true rule in such cases is, that to entitle a party to relief in equity he must show, first, that his failure to make full answer was not attributable to his own omission, neglect or default; second, that he has a good defense to the entire cause of action, or to such part of it as he proposes by his petition to litigate. It is not enough to show that he was not guilty of neglect in permitting the judgment to go by default,
If the judgment below was substantially correct, although it might have been obtained through some inadvertence, mistake or want of due diligence upon the part of the defendant, or if the equities of the parties are otherwise equal, then a court of equity will not interfere, but will leave them where the law has placed them.
If, however, as said by Chief Justice Marshall in the leading case, Marine Insurance Co. v. Hodgson, “any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery.” 7 Cranch, 335.
Under our blended system of law and equity, the equitable defense of the garnishee, Freeman, could have been made available in the original suit had it been presented, and his failure to thus present it would, in a proper case, be a bar to further proceedings.
The petition for injunction in the present suit, in our opinion, sets up a sufficient excuse for this failure, and a sufficient defense, if sustained by satisfactory testimony, to afford appropriate relief.
On the motion to dissolve for want of sufficient equity in the petition, the facts as alleged are taken as true.
Thus considered, the motion should have been overruled, and for the error in sustaining the same, the judgment below is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered May 21, 1880.]
