17 Tex. 336 | Tex. | 1856
The question presented by this appeal is»
To hold the order of dismissal a final disposition of the case, and conclusive upon the plaintiffs, under the circumstances, would be contrary to the intention of the parties and extremely inequitable and unjust. But if it were held that the case was in fact and in effect dismissed, the plaintiffs could not be denied redress, upon the facts which the record discloses. It would operate a fraud upon them, to permit the defendant to hold on to the legal advantage thus obtained by action taken with "his concurrence, and without any fault of the plaintiffs. If the discovery that the proposed arbitration would be impracticable, or ineffectual, had been made during the Term, and the plaintiffs had then moved to re-instate the case, it will not be contended that it could, with any justice or propriety, have been denied them. And the only ground on which their application can have been denied, is that it was not made during the Term. But we have held that a party may entitle himself to the grant of a re-hearing or new trial after the Term, by showing sufficient cause to. have entitled him to a new trial, if applied for at the Term, and a sufficient legal excuse for not having then made his application. (Goss v. McLaran, supra, and case cited.) In this case sufficient appeared by the record of the proceedings before the Court to entitle plaintiffs to a reconsideration and revocation of the order of dismissal ; and it further appeared that they'ffiad a sufficient excuse for not having sooner made their application. They could not be required to make their application before the occasion for it had arisen. They, then, were entitled to have their application granted upon the same principle on which a re-hearing or new trial may be granted after the Term. The defendant being there represented in Court, and having the opportunity afforded him to contest the application, it could make no difference to him, and it can make none as matter of practice, that the application was by motion instead of petition. The
Reversed and remanded.