Pullman Palace Car Co. v. Dargan

Opinion by Hurt, J. § 442. New trial. Judgment by default was rendered upon the service of a citation upon one R. W. Thompson, of Dallas county, who, in the plaintiff’s petition, was' alleged to be the company’s representative in Dallas county. After judgment, but before the writ of inquiry was enforced, appellant company appeared and moved to set aside judgment of default, and to be allowed to file answer, and, amongst other things, alleging in the motion that at the time of the service of the citation the company had no agent in Dallas county; setting forth grounds excusing apparent laches, and averring that the company had a good, equitable defense to the suit, which defense was also set out. This motion was sworn to by D. H. Martyn, agent of the company, sent from Chicago to look after the suit. Being overruled, defendant company excepted and appealed. Held, that whilst it may be true that greater diligence could have been shown than that exhibited in the motion, still we are of opinion that no such laches is shown as will preclude defendant the right to a new trial, especially in a case like the one in hand, in which it appears under oath that defendant [197] has .a meritorious defense and that grievous injustice will be done him by its denial. [Burford v. Bostwick, 50 Tex. 371; Dowell v. Western, 20 Tex. 793; Grah. & Wat. on New Trials, 187-675.] June 22, 1883. Beversed and remanded.