Bomar v. Parker

Citations

• 68 Tex. 435
• 4 S.W. 599
• 1887 Tex. LEXIS 712

Syllabus

<p>1. Obiter Dicta.—The declaration contained in the opinion delivered in Hughes v. Lane, 25 Texas, 356, to the effect that a judgment on deT murrer is not conclusive, was not necessary to the decision of that case; and can not be maintained either on principle or on authority. A general demurrer which admits the facts stated by the plaintiff, when sustained by the judgment of the court, is as conclusive of the cause of action as if the plaintiff had proven them and a judgment had been rendered against him.</p> <p>2. Action.—An original action which has for its object the readjudication, of matters determined in a former suit between the same parties, and is based on grounds which could properly have been urged in a motion for* new trial, can not be maintained, unless it is shown that the plaintiff was prevented from making his motion during the term at which the judgment sought to be set aside, was rendered. If the motion was made and abandoned, that fact is fatal to a new suit when brought for the same purpose. If the final judgment against him was on demurrer, and the party failed either to amend or appeal, there being no sufficient cause to prevent him from so doing, he can not maintain an original action.</p> <p>3. Same—Negligence.—See opinion for facts under which it was held that a party was concluded, by his negligence in the management of his motion for a new trial, from afterwards maintaining an original action for the readjudication of matters at issue in the former suit.</p>