Fisk v. Miller

Wheeler, J. On the authority of repeated decisions of this Court, it must be held that the petition disclosed no sufficient [578] ground for the awarding of a new trial. (Goss v. McLaren, 17 Tex. R. 107, and cases cited.) What the “mistake, accident or omission then beyond the control” of the petitioner was, which he “ considered then out of his power to prevent,” and which prevented him from producing his evidence upon the trial, ought to have been shown, in order that the Court might judge of its sufficiency, and in order that it might be seen that it was not occasioned by his own fault or negligence. Moreover, he shows no excuse for his failure to move for a new trial during the Term. The causes which would be sufficient now for awarding it, would have been so then. The failure to present them should have been satisfactorily accounted for. It is insisted, however, that the judgment in the former case is no bar to the present action; for that the defendant, where there has been a judgment against him in an action of trespass to try title, has the right to bring his action and recover upon the title he had before the action, in analogy to the right of the defendant in an action of ejectment at Common Law. However equitable this may appear, we have been unable to find anything in the law to warrant such a doctrine. The action of ejectment was never known to our law of procedure as a remedy to which a party might resort to recover the possession of land. The maxim of the civil law is res judicata pro veritate accipitur, and it was recognized and applied by the law of this country. The Act to provide the mode of trying titles to land took effect contemporaneously with the Act which introduced the Common Law. It provided that the action should be tried on its merits, conform-ably to the principles of trial by ejectment, but at the same time rejected the fictions of that action. (Hart. Dig. Art. 3220, 3221.) These, therefore, cannot be invoked to give a right of action unknown to existing laws. Moreover, the Act expressly provides that the plaintiff shall have a second action, (Hart. Dig. Art. 3226,) but there is no such provision for the defendant; from which the conclusion is irresistible, that he has not the right by the statute; and there is no other law which confers it. The Court therefore did not err in sustaining the demurrer, and the judgment is affirmed. Judgment affirmed.