36 Tex. 657 | Tex. | 1872
This is an appeal from the rulings or judgment of the District Court, upon a petition to set aside a judgment rendered at a former term of the court, and to grant a new trial upon the merits of the case. The petition was accompanied by affidavits to establish the truth of the allegations made, and upon which the judgment of the court was sought. An answer was filed, denying many of the allegations in the petition, to which were attached counter affidavits. Upon the petition and answer, together with the several affidavits, the judgment of the court was sought by both plaintiff and defendant, and was finally
The question now presented for decision is not the merits of the original suit complained of, but whether the appellant has presented in his petition below such equitable grounds for relief, which are admitted to be true or have been established by affidavits, as would entitle him to a re-héaring on the merits of the original suit. The petition is analogous to a motion for a new trial in term, and the proceedings had thereunder are the same or very similar; and we are unable to appreciate the objection made to the record because of the want of a statement of facts. It has been repeatedly decided by this court that a new trial may be granted after term, upon equitable grounds, provided the party applying “ shows sufficient matter to have entitled “ him to a new trial if applied for at the term, and a sufficient “ legal excuse for not having then made application.” (Goss v. McClaren, 17 Texas, 120; Cook v. De la Garza, 13 Texas, 432.) These decisions are too generally recognized as founded in law and equity to require further argument or citations of authorities in their support, aud the rule there enunciated has become a law in this State, but this rule has exclusive reference to the parties to the original suit, and not to third parties, or persons not parties to the suit, who may have been affected by the judgment sought to be set aside.
In the record before us, landlords whose tenants had been sued by a third party, and by the judgment of the court dispossessed of their tenements, now seek to have that judgment set aside, and a new trial awarded, with permission to them to defend their own title, and protect the interests of their tenants. Our statute, Article 5296, Paschal’s Digest, provides that: “ When a tenant is sued for lands of which he is in possession,
In our State all fictitious proceedings in the action of ejectment are abolished, but the principles of equity and justice which were administered under that form of action are nevertheless the rules of action and construction for our courts, and we think the rule which allowed the landlord who, through collusion, fraud, or otherwise, had had no notice of the pendency of a suit against his tenant, to come in within a reasonable
The judgment of the District Court is therefore reversed, and the cause remanded, with instructions that a new trial in the original suit of Hammond and Hamman v. Hash et al. be awarded.
Reversed and remanded.