Bryorly v. Clark

Citations

• 48 Tex. 345

Syllabus

<p>1. Bill for new trial.—It has long been settled, that a bill for a new trial must show sufficient matter to have entitled the party to a new trial, if applied for during the term, and a sufficient legal excuse for not having then made his application.</p> <p>2. Same—Practice.—It seems clear, on principle and authority, that if it were still in a party’s power to move for a new trial in the court that tried the cause, he could only be justified, if at all, in resorting to a separate suit, in the nature of a bill in equity, by showing that under the circumstances the remedy by motion was inadequate or uncertain.</p> <p>3. Second motion for new trial—Practice.—The judgments of a court are under its control during the term at which rendered, and a second motion for new trial may be allowed. That one motion for a new trial has been overruled, is not a sufficient reason for resorting to a new suit, instead of filing a second motion, setting up the same matters relied on in such new suit.</p> <p>4. Parol agreement.—Such agreement, to set a case for a future day of the term, if violated by plaintiff, by pressing a trial when the case is reached, and before the day set, does not, of itself, present ground for new trial.</p> <p>5. Fact case.—Where exhibits, annexed to a petition for a new trial, conflict 'with the general charges in the petition relied on as ground for the action of the court, a disregard of such general charges by the court below is no ground for reversal on appeal.</p> <p>6. Practice—Judgments under control during term.—The District Court may reconsider its ruling dismissing a petition, and may overrule exceptions thereto, in whole or in part; and the plaintiff in the bill has no cause of complaint, unless special injury resulted, which should be shown by bill of exceptions.</p>