Caperton v. Wanslow

Wheeler, J. It is the well settled doctrine of this Court, that, to entitle a party to have the judgment of a former Term set aside and a new trial awarded, he must make out a case which would have entitled him to a new trial, if applied for at the Term, and show a sufficient legal excuse for not having then made his application. (13 Tex. R., 444; Spencer v. Kinnard, 12 Id. 181; Goss et al. v. McClaran, 17 Id.) The petitioner has manifestly failed to bring his application within the rule. No excuse is shown for not having made the application within the Term. It is not averred that the party did not know of the judgment rendered against him until after the Term. That inference may be deduced argumentatively, from the averment that he understood that the cause was to be continued. It ought to have been distinctly averred ; and not [133] left to inference merely. The petition, moreover, discloses the fact, that the main ground of the application, and that which was essential, and the only ground which could entitle him to have the judgment set aside : that is, that there was an agreement to continue the cause, rested peculiarly within the knowledge of his attorney, he being the party to the agreement. It should have been supported, if true, by his affidavit; or by some other evidence than the information and belief of the party ; or a sufficient excuse should have been shown for the omission. For these reasons, the application was manifestly insufficient. (Goss v. McClaran, 17 Tex. R.) It is objected that the appellee did not except to the sufficiency of the petition. He however objected his answer, contesting the truth of the petition ; and he sought thereby to repel the grounds on which the application was based. He thus made opposition to the application. The Court proceeded to give judgment upon the petition and answer, vacating the former judgment and granting a new trial; and appellee thereupon excepted to the judgment and caused his exception to be entered of record. This entitled him to have the judgment, of which he complains, revised. It is different from the case of Bradshaw v. Davis, referred to by counsel. There, the exceptions, which were specially taken, were confined to supposed defects in the injunction bond ; and had the exceptions, as taken, been set out in the report of the case, it would be apparent, that the notice of exceptions in the entry, had reference solely to those exceptions. There was no objection, opposition or exception to the order setting aside the judgment of the former Term and granting a new trial. It was acquiesced in, which is not the case here. The present also differs from the case of Sweeney v. Jarvis, (6 Tex. R. 36.) There the new trial was granted during the Term ; and therefore while the case was within the supervisory control of the Court. After the Term, the Court no longer has any discretionary power of supervision and control over the [134] cause. The rights of the parties in the judgment become final and vested ; and the Judge can have no discretionary authority over it, or power to set it aside, except upon grounds, which the law recognizes as legal and sufficient. This subject was fully considered in the case of Goss et al. v. McClaran (17 Tex. R.) and need not be further examined here. Upon the authority of that case, it must be held that the judgment va" eating and setting aside the judgment of the former Term, and granting a new trial was erroneous. It must be reversed, the proceedings thereon set aside, and the former judgment reinstated. But there was no necessity for the appellee to sue out a writ of error and bring up a separate transcript of the record, to enable him to assign the error in the judgment. He could as well have made his assignment, and had it incorporated in the record brought up by the appellant. He, therefore, must be taxed with the costs of the record brought up upon his writ of error, as well as his petition in error and the proceedings thereon. And it is ordered accordingly. Ordered accordingly.