*1
BRYANT
REED
S.W.)
!
Judgment
jury,
Rehearing.
&wkey;>335
of
5.
for
On Motion
—-Misconduct
discussing
did not au-
facts not
in evidence,
n
reversal, appellees
setting
judgment
alternative
aside
in separate
[6] As
thorize
damages
(Rev.
2234).
effi
suit
St.
art.
of
the amount
remit
offer to
jury,
reaching
appellants
the cross-ac
Misconduct
ciently pleaded
discussing
evidence,
below,
facts not
introduced
the court
them in
tion
procured by party re-
which was not caused or
exceptions. We
out
stricken
setting
covering judgment,
not authorize
did
amount recover
maximum
conclude
prac-
separate
aside
ticed
suit for fraud
$2,278.-
appellants’
under
able
by winning party
procurement; Rev.
in its
we
appellees’
offer to remit
and under
permitting
trial to be
St.
art.
2234_,
Ac
dispose
that basis.
being
will
jury,
for
unavail-
misconduct Of
cordingly,
reversal will
the order
able.
entered, re
aside,
order will
and an
Judgment
<&wkey;335(2)
evi-
6.
discovered
Newly—
forming
losing
not discovered
dence,
parties
$2,278.85
from
sum of
to deduct
as
was not
trial,
prior
by appellees,
so re
recovered
amount
suit.
for
aside
in separate
affirmed,
formed,
at
Newly
discovered
not known to
appellees.
cost of
losing parties
in exercise
or discovered
proper diligence prior
trial,
losing
of
party
previously discovering,
prevented by winning party
was not
from
set-
ting
ty
purpose.
by winning par-
for fraud
procurement
separate
in its
suit for that
Judge,
et al.
District
BRYANT,
REED
11794.)
(No.
filing
Prohibition
7.
answer
in suit
<&wkey;I2By—
participating
to set aside his
and by
Appeals
(Court
Texas. Fort Worth.
of Civil
regarding
in another
in-
property
Rehearing
Jan.
Denied
1926.
Dec.
right
defendant
did
volved,
not waive
to writ
Mo-
Leave to File Second
1927. Motion for
to restrain
prohibition
interference
26, 1927.)
Rehearing Denied Feb.
tion for
judgment.
execution
By filing answer in suit'in nature of bill of
has
i&wkey;>205
of Civil Appeals
Courts
1.
—Court
by par-
review"
ticipating
aside his
jurisdiction
its de-
obedience
to enforce
proceeding regarding
lien notes
ju-
its Supreme
outside
crees
plaintiff,
which he received from
defendant did
district.
dicial
prohibition
not waive
to writ of
to re-
Appeals
judgment.
Court
Civil
strain interference
with execution
decrees,
authority
though
its own
even
to enforce
Rehearing.
On Motion for
had to'' be
enforcement
longer in
district.
Judgment <&wkey;335(2)
8.
could not com-
—Parties
plain
matters,
Judgment
<&wkey;335(2)
fraud,”
2.
—“Intrinsic
determined,
involved in issue actually
judgment.
to vacate former
not warrant
cancellation
Idid
parties appeared
pleadings
'
Where
and filed
in nature of bill
review.
separate
oppor-
and took
tunity
and had
defendant, in tes
Fraud
present objection
tifying
in
wise
be false and
to facts which
knew to
pleadings,
excessive for lack of sufficient
procuring
he like
by surprise during trial,
were taken
fraud,”
was “intrinsic
necessary parties,
and that there
actually determined,
fraud-
they
ground
complain
of same matters as
which did not warrant cancellation of
ment
view.
for second Suit to
vacate
bill
nature of
of re ment.
prohi-
Petition
M.
Reed for
H.
writ of
definitions,
.[Ed.
Note.—For
see Words
’restraining
Judge
Second,
bition
Bruce W.
Phrases,
Series,
Intrinsic.]
County,
District Court
others,
taking steps
Judgment
Judgment
final exe-
<&wkey;217
3.
—
though
it failed to award
writ
execution
cution
mandate issued
Court of Civil
its enforcement.
Appeals,
and for
to restrain re-
spondents
Judgment,
taking
steps
delay
which failed to
award writ of
enforcement,
final,
execution for its
since prevent
execution of that
Relief
right to such
arises
from and is incidental granted.
recovery
awarded.
Hart,
Austin,
Hart, Patterson &
for re-
lator.
Judgment
<@=>1
Appeal
145 —
Haskell,
respond-
G. W.
trial court became
ents.
when it was affirmed on
appeal.
Judgment
of trial
became
DUNKLIN,
31, 1920,
On October
Mrs.
J.
Appeals,
of
on
when was affirmed
Court Civil
appeal prosecuted
Thomason and
therefrom.
Edna
Digests
Key-Numbered
topic
@mFor
and Indexes
in all
and KEY-NUMBER
other cases see same
*2
WESTERN REPORTER
SOUTH
procured,
Thomason,
which
in
Reed
and
their suit
likewise
instituted
county against
(2)
knew to be false.
That
trict court of Throckmorton
since
plaintiffs
in
a certain
the former
M.
cancellation of
had
H.
for the
Reed
by discovered
an
oil lease
would
contract of sale of
Reed,
witnesses who
testi-
to.
fy
recovery
to facts
ven-
of certain
material
and for the
the cause of action
up by
plaintiffs
plaintiffs
set
suit,
transferred
in
dor’s lien notes
the first
and
purchase,
Reed in
said
corroborate the
consideration
by plaintiffs
promissory
suit,
in
of
that
also for the cancellation
note
another
wit-
$2,241,
principal
newly discovered,
ness who
sum
had
of
executed
who
testify
plaintiffs
in
in
Reed
further consider-
direct
of
contradiction
grounds
material
ation
the lease.
for the sale of
intro-
witness
cancellation, briefly
were
stated
duced
case.
for such
that Reed had
on
Reed
the trial of the former
obligated
alleged,
an
In
himself
drill
in
connection it was
substance,
adjoining
depth
3,500
plaintiffs’
oil well on
land to
of
to dis-
failure
gas
feet,
less cover
was found at a
said new
unless oil or
of
witnesses before the trial
depth,
February 21,
former
on
or about
was not due to
of
lack
diligence
plaintiffs
part.
(3)
jury
title
an'abstract of
on
would furnish
their
That
them, showing good
try
upon
selected to
to
title
lease so sold
the former suit and
thereto,
obligations
he whose
both
suit was
guilty misconduct,
had breached.
were
answer, denying during
they
filed an
their
To that suit Reed
deliberations
oth-
discussed
petition,
allegations
plaintiffs’
plaintiffs
er
lawsuits
in which the
in this
interested,
for suit
for ated a
he filed a
were
addition thereto
cross-action
which discussion cre-
prejudice
judgment against plaintiffs
against
plaintiffs
note
on the
$2,241,
plaintiffs
prejudice
and de-
reason of such
executed
trial
a ver-
Upon
dict was
connection it
livered
to him.
rendered
them.
In that
plaintiffs
denying
rendered
was furtlier
adjourned
for,
prayed
decreeing
very shortly
trial court
the relief
ery
a recov-
its term
after the
verdict was returned
favor of Reed
his cross-action for
thereon,
plaintiffs,
principal
through
rendered
note,
the
plaintiffs
interest of
him,
failed to
had executed to
mentioned
discover such mis-
adjourn-
conduct of the
until after
above. That suit
465 on the docket
said
ment,
county.
tip
then too late
of the
district court
be set
grounds
as
prosecuted
one of
plaintiffs
that suit
an
motion
(4)
new trial in
appeal
that cause.
this
where
things
in cause No.
465 was not final
affirmed.
district court
rehearing,
provide
failed to
A
motion for
issuance
an
See
courts, conceding and, while the fact that ex- pro- Texas take her to as-soon as he equita- trinsic fraud furnishes a foundation home, having vide a new induced her position relief, ble mony taken that false testi- in Louisiana to consent to the while sale fraud, proof amounts to intrinsic According Texas home. their legations further al- is not admissible.” the husband know- Judg- falsely ingly To the same effect is Freeman on testified that his wife had ments, him, $20,009 § 489. and that abandoned was the REED v. BRYANT v Í.W.) the; lege acquired property the same as a a new trial extent sepa- adjournment relation, before the marriage of the term. of which wasi $55,000 property, decisions in fact there was Courts of rate worth of belonged property, respondent, McMurray, community $572-, except McMurray the case estate supra, to; separate property has been husband. referred Avocato was the Dell’Ara, Ralls, S. W. the absence Ralls The divorce wife, property Co., Ellis v. and she was Lamb-McAshan . $1,800, cited, amounting the rest W. 241 In the case in value to first fraud, belong was a It was suit to set aside husband. decreed employed attorney Justice Neill said: the_ represent forced to the wife her was only question is, “The to be considered plaintiff rely entirely have, upon dissolving Should the court the tem- respect property, porary injunction, title to the dismissed the bill without hearing upon its merits?” husband had concealed theretofore concerning the from her information Following announcement, the McMur- It the wife was further same. ray to, was referred Case with the observa- falsity husband’s discover the did not questioned tion by any jjeen the same adjournment until state, other decision in this but added term of court. the decision in following: Stayton, Associate Justice Throckmorton, equitable principle U. S. decision U. S. v “We have referred to the *5 relief announced not for the Ed. was referred to 25 L. showing petition in this discussion, cussed, ap- case stated matters sufficient to entitle' following was said: pellants sought, question now, sufficiency pass not for us to on its us “If before the averments that, true, plaintiff even but to the should it be conceded show it cannot be denied that the bad, subject prevented to to by was it would be of the ad- was the fraud exceptions fully presenting if party amendment were sustained her case verse at the time the decree out it.” entered, so with- was of herself want on the (Ralls referred to committed, If this was or counsel. done fraud was Ralls), syl- is stated in obtaining not step complainant preceded opinion: which labus cognizant ought was to have an set a “In action to aside divorce decree and prepared to meet. disposition community property, evidence party “The rule which denies to a held sufficient to show that managed the husband so relitigate controversy a matter once the matter as to wife from having jurisdiction decided is one ascertaining rights extent of her on the observance of of so- which welfare property, extent and value of that ciety largely depends, and should not be frit- finding duced partition agreement pro- away; tered it assumes that there has have fraud would been sustained. respective parties been a misrepresent- fraud in “Where a husband’s opportunity fully present have an had their ing community prop- the amount and value of ought given application claims. It no't to be erty prevented having the wife from a real clearly appear when it made to that one rights trial of her and in the divorce party has, by knowing- his own false evidence community property, división of ly given, or of others evidence justified would have aside and known introduced judgment to be obtained a the decree.” or decree his gives something justice himto which truth and appears It thus there deny. would sought procured by to be ex- mistake, “If accident or fault or without .practiced upon wife, trinsic fraud neglect ment relief adversary, judg- have, of his one obtains a ought partition agree- decree induced her ment, enter into may given. why? Certainly be agreement And the decree of no reason than affected court was entered. oppor- the tunity deprived accident mistake has not had (Ellis Lamb-McAshan), In the third case fully present right. one is When judgment against power of the to do this the know- garnishee, vacated, ingly adversary, false of his is he to was void had been no given, be denied relief when it would be on the garnishee, mistake, although of accident or service when his ad- Mc- may versary be without Murray fault?” decision was further cited with ref fraud, alleged erence to aas Walnitzch, vacating Bell v. it Tex. general way opinion McMurray held in a While, that a ob- swearing Case, special tained fraud or false is laid vi- stress the uncon- perpetrated tiate the in a the scionable fraud the husband losing party if he no perjury to al- he committed cheat the willful 291 S.W.-39 (Tes. REPORTER SOUTH WESTERN preme jurors
heard introduced was 1905, 18), amending for verdict. provides the proven liberations shown rors attached reaching afiirmed cause No. thorities ment Tex. Civ. of judgment of the Court cause of its tion party. of cured such writ held that cation our en and aside in another in- the decision ly the decision Civ. C. other authorities jured testimony cerning tate, perfidy reposed decision a result of a prior him with appearing were also decision [5, [3, Substantially Ry. respondents analyzed, review, same trial court wife recovery awarded. right 6] case is 4] for its fraudulently c of the trial from themselves estate for writ Co. v. We procured to There And in each of Article their subject. was further based knowledge the divorce act App. pointed the husband full control they open him the statutes false failure members overrule in accord with arises the'trial court enforcement, in each of which it of U. a new Court passed of Civil Chambers to deliberately is no merit cited. affidavits S. proving in the McMurray is clear that the for misconduct the same construction partition uniform in Warne discussed of error misconduct court became testimony fraudulently to show such out wife was Prior to that concealed from to award to -a for want S. v. the trial. and extent Furthermore, like hear Rev. proceedings, present Appeals prosecuted at the partitioned. those and of some of the holding Ryan of the since planned cause No. former violating effect, Case certain in the contention was not final be Statutes of v. Jackson thq.t year nature a writ of execu a valid showed prevented cases an trial her false and evidence then H. & community on the added be based When ease that dismissed jurors supported 750, cases it incidental which vested amendment, estate, jurisdiction. cited above. misconduct E. W. of our decision therefrom. statute on contention or others. not' Raley, scheme facts their de of a bill right And the and winning adopted jury in on that 465, as proper- (Laws for rights *6 appli jury, (Tex. any trust from even facts wife rant the vacation of the pro con- per- giv Su au ju ir district es- by by he that T. to to as kinds in cause No. so prohibition.. clerk strength that 540, taken to posited benefit morton question bition now creeing that the son’s Thomasons, was entered to recover sons sideration Thomasons of Throckmorton ed ered conclusion legation dor’s since no come within setting duct of the or arate and ered gence prior motion timony is spondents Ry. While under the was not regularities For waiver prohibition satisfy participating doing M. M. in in relator’s manner pending in Co. right by filing such misconduct of the purpose. evidence and transferred to Reed lien notes on a During been cited to land defendants, the district occurring during in of the successful county. Manifestly of this winning party judge in the second suit of of waiver of the Thomasons and charge to was one of admissible of his petition-and pleaded Allison, admissible to sustain a motion in their suit No. reasons motion for new Ricketts, from prayed and which the Thomasons independent 465 in responsible court is Had a him in the applicable judgments directed to the trial of cause not in purchase-money the lease Indeed, state, directing arisen. formerly corrected should there money in cause No. 465 was caused relator, was made that the under discussion right pendency application the vendor’s scope amended statute such the improprieties bar. presented known to and an stated, court of Dickens district for. an answer in error in default ordered exercise suit, authority maker Thirty-Ninth to the writ the contention of then Indeed, impeach therefor. proceeding was not for fraud sold in the district court a suit Nor relief trial. S. granted, agreed judgment 465. discharging court the act jury that he was paid by them overruling to issue a writ for a Hon. Bruce W. remain appeal, yet of certain a more serious Reed were did instituted- for notes and de newly authority lien, No. 465. demurrer procurement, his action in in which lends deliberations to the said of different In Allison’s the him the verdict of Throck cause discov or discov he waive practiced does L. S. of Reed writ institut Thoma miscon prayed prayed Allison to prohi Alli war ven con dili sep tes de we re al W. to «surprise new trial ment wholly beyond lowing of And if. diligence prived cient Thaxton. will not interfere to set aside a denied. controllable circumstance also grant strict and sive, ment clerk the enforcement ties. cate must of all order ous suffer persons claiming junction and his ason straining them, said cause No. agents, and determine dicial should either of successors in office to vacate cessors in office from “It To the Respondents (1) properly presenting obey any this court proper to that it after it has been issue Brownson is also a fixed rule that a court of to the extent of pleadings and to exhaust fail in means at his of said a new trial process an adverse dismiss said be served after it has become attorneys, the cause should said required heretofore issued them, On Motion For fraud, accident, same effect is Kimmell must rest.” proof as reasons and that he has been sustained, there was a issued to restrain a writ the former execution of the said: mandate challenging insist that the restraining him right 193 S. W. of said Thomasons, against of this namely, enforce the same. control, through complainant which would interfere support disposal except upon Reynolds, following grounds in a former cause every presentation each of instituting court is to wit: of this court issued why his case injunction a suit $65 And done, relator mistake, fails entering employees, Rehearing. equity are the fundamental be vacated and Travis it. doing we should discuss ties to arrest the Mrs. Edna the case. apparent that he them, said mandate he had been under hereby DÜCLOS tlie has a meritori- were taken cause to set aside a necessary (writ in said cause binding remedy its collection the docket circumstances and his to. compelled all that avail relief will or other directed was exces- showing clerk demand a Edwards them, And the ordered since their himself Thom- issued whom equity error force v. HARRIS COUNTY suffi- trial. *7 par- suc 76 S. fol (291 S.W.) un- va- de- ju re in ot .suit and nitely. v. Brown ties controversy And, cate another ered. To hold otherwise tain appeared rehearing, 406; court of House us on notwithstanding authorities same fees in suits final, DUCLOS v. HARRIS COUNTY. in the contention that Travis there they should the Foust Thaxton were denied), decisions announced brought by Southern trict clerk of district are count for districts, district clerk need I. Clerks (Court county tax pendent The motion We Furthermore, suits for Under effect of delinquent brought by successive the suit to vacate the former The record shows suits Rose then since matters adhere controversy original hearing 7343). clerk If litigation thereby 799. fees took competent Warren grounds alleged must Rev.' St. school by respondents and filed Surety (Tex. cities, rights delinquent which we have brought Thomasons view cited art. Com. no courts for Darby, taxes the matters mentioned delinquent necessary state or account suits could suits Feb. exempted and of independently of article position would have the vacate the former districts towns Com. the conclusions reached were above. rehearing 1925, art. (Tex. Co. v. Tex. Oil them, decisions there to account for fees of abe determined. pleadings brought 8, 1927.) <&wkey;>35 above, taxes account argument 33 Tex. Civ. cities, towns, providing ample opportunity for delinquent county, adverse to them on 281 S. W. taxes myth. of this (Rev. parties which has become in their motion for law, permitted trial of the cause. brought Texas. 3891, requiring independent is overruled. subject-matter there is no merit continued carefully fees manner complain judgment. —District 237 S. W. App.) for the second the Thomasons only then accounting St. thus providing and authori- cities, towns, that in suits fees (No. mean proceeding, received cited; taxes when Galveston. 72 S. W. App. 341, and inde- the bind- must brought, Clearing clerk received state or rule 8998.)* consid former indefi- above, to va- school main- office, suit; suits arts. par- Hill also for ac- Digests Key-Numbered topic other cases see same and KEY-NUMBER in all Indexes
®=sPor granted April 13, 1927. *Writ