4 Willson 358 | Tex. App. | 1891
Opinion by
The judgments entered at the April and October terms do not impose conditions upon appellant as conditions precedent to the reinstatement of the cause upon the docket; though in the judgment rendered at the January term, following, this language is found: “This case was reinstated on motion of plaintiff at a subsequent term, to wit,” at the April term, 1890, “ upon the following conditions, to wit: That, the note sued on appearing upon its face to be barred by the statute of limitation, this cause is reinstated upon the understanding that the plaintiff shall upon the trial thereof produce such evidence as will take the case out of the operation of the said statute of limitation; and that, should plaintiff fail to produce such evidence, then and in that event judgment should be rendered for the defendant’s answer, to which said understanding, plaintiff, by his attorney, gave consent, and agreed thereto. ” Appellee had not then answered, and did not answer until October following. Article 1368 of the Revised Statutes provides that “judgments may be set aside or arrested on motion for good cause, on such terms and conditions as the court shall direct.” Usually such motions are made during the term at which judgments were rendered, but not always. By the provisions of article 1368, above quoted, it is not a matter of right that judgments will be set aside on motion. It is discretionary with the court, but that discretion is not an arbitrary or personal one, ‘ ‘ but is rather an exercise of the equitable discretion of the court upon the presentation of sufficient cause, and then upon such conditions as shall provide adequate penalties and protection for all parties. Whatever conditions are imposed in a reasonable exercise of judicial discretion in setting aside the judgment of nonsuit must be submitted to; but, when these
By the judgments of April and October terms of court no conditions were annexed to the granting of the reinstatement. It is too late at a subsequent term to ingraft conditions of this sort upon such judgment. The judge is presumed, and it must legally be so, to have the judgments of the court recorded and not carry them around in the mind or breast of the court. The condition reserved in the mind of the court, and carried about with him in silence for nearly a year, will not be ingrafted upon the case after so long a time by the court of its own suggestion after trial without notice, especially when that reserved condition will defeat the very right already granted and entered as a good judgment of the court. [Wheat v. Davidson, 2 Tex. 199.] Limitation was arrested in this cause when it was originally brought, and it remained suspended through all of its stages, and is
Beversed and remanded.