Metzger v. Wendler

Ogden, J. September, 1868, the plaintiff in error brought suit in the district court on two promissory notes, bearing date October, 1861, and on the trial of the cause the defendants proved that the notes were given for, and fcy verbal agreement were payable in, Confederate money. The cause was submitted to a jury under proper instructions from the court, and verdict and judgment were rendered for the defendants. A motion for new trial was made and overruled, and the cause was brought here by a writ of error. Subsequently the plaintiff below filed another petition in the district court, setting up substantially the same facts as in the original petition, together with the [384] trial and judgment on the same, and the rulings of the court on the motion for a new trial, as well as other-facts relating to the merits of his cause, and the further fact that since the trial of the original cause he has discovered new evidence to sustain his demand. He also-charges fraud on the part of the defendants, and perjury or false swearing on the part of the witnesses for defendants, and prayed for an injunction to stay the enforcement of the original judgment, for a new trial in the cause, and for judgment, etc. To this last petition the defendants demurred, and the court sustaining the demurrer, the cause was dismissed. Another motion for a new trial was made, and overruled by the court, and the plaintiff gave notice of an appeal, and that cause is here on a writ of error. We now have two distinct writs of error, and two separate causes before us, from two separate and distinct judgments of the district court upon the same cause of action, and for the purpose of enforcing the same demand. This certainly is a novelty in the practice in this State, if it would not be-considered so in any other. This last suit was undoubtedly instituted as a bill of review, or as an original bill in chancery, for the purpose of obtaining a new trial in the original suit. As we have in this State no-separate and distinct law and chancery courts, the rules of practice in those courts, where they are separate, cannot always be applicable to our courts. Originally courts at law had no authority to grant new trials, and the party aggrieved was then compelled to seek relief through the courts of equity. But when the courts at law exercised the prerogative of granting new trials, then courts of equity would seldom interfere, and only in cases of fraud or great injustice, and never unless the party applying for relief showed most clearly that he-had exhausted his remedies at law, or gave a good and [385] equitable reason for his failure so to do. The cases are, therefore, exceedingly rare, where a court of equity has granted a new trial after an application for that purpose had been made to and refused by a court at law. But under our practice, where the law and equity jurisdictions are united, it is difficult to discover any reason why the same court, exercising equity powers, should grant a new trial after it had once refused to do so for the same cause. In the cause of Vardeman v. Edwards, 21 Texas, 740, the court says: “ The application, whether made before or after the term, is addressed to the same court, having cognizance of both legal and equitable causes; and there can be no reason why it should not be governed by precisely the same principles in the one case as the other.’’ If, therefore, the court is to be governed by the same principles, whether the application be made in term or after it, then, where the application is made in term and the judgment of the court is had, that judgment becomes a finality, and the questions settled are res ad/judicata, and the court, after the adjournment of the term, has no authority to reconsider that judgment, unless the same is impeached as a nullity. '1 Indeed, a court of chancery will not order a new trial of an action at law when application for a new trial has been made to the court of law and refused; the party’s remedy in that case being by bill of exceptions and a writ of error. ’ ’ (Graham & Waterman on New Trials, 1463.) And in the case at bar we have no hesitancy in deciding that, as the plaintiff in error had once prosecuted his suit to judgment, and had made a motion for a new trial which had been overruled, his only remedy was by bill of exceptions and appeal, or writ of error; and that the court below did not err in sustaining a demurrer to an original suit for the purpose of obtaining a new trial. [386] In this cause the plaintiff in error complains of the great injustice of the judgment in the original suit, and charges that the judgment was obtained by the false swearing of certain witnesses, and now applies for a new trial that he may discredit the testimony given on the former trial, and impeach the witnesses who then testified. But in Scranton v. Tilley, 16 Texas, 193, Justice Wheeler, delivering the opinion of the court, says : “A new trial, it has been said, is rarely if ever granted on account of newly discovered evidence, if the only object of the evidence be to impeach the credit of a witness.” And in Graham & Waterman on Hew Trials, it is said : “An injunction will not be allowed to stay proceedings and judgment, on the ground that the witness had committed perjury at the trial; that a party had been prevented from attending the trial by public business, and that a new trial had been refused.” (Smith v. Lowry, 3 Monroe, 420; 2 Denio, 109; 11 Barbour, 215.) The conclusion is therefore inevitable, that in this case the plaintiff in error is not entitled to the relief sought, even against false swearing; that the time to present that complaint had passed ; and if now he has to suffer in consequence of the mistaken or false testimony of others, he certainly is chargeable with a fault in not prosecuting his rights at the proper time, with the necessary skill and vigor. And the practice of prosecuting two suits in the same court of original jurisdiction, at the same time, for the same demand, and by an appeal or writ of error bringing both causes to this ■court, for determination, is a practice too absurd to meet with encouragement at our hands. The judgment of the district court is therefore affirmed in all things. Ayfirmej).