Metzger v. Wendler

Citations

• 35 Tex. 378

Syllabus

<p>1. As we have in this State no separate and. distinct law and chancery courts, the rules of practice in those courts where the law and equity jurisdictions are distinct and separate cannot always be applicable to our courts.</p> <p>2. In the courts of this State, an application for a new trial is governed by the same principles when made during the term as when made subsequent thereto; and therefore when an application has been made during the term, and the judgment of the court upon it has been rendered, the questions involved are res adjudicata, and after the adjournment of the term the court has no power to reconsider its judgment, unless it is impeached as a nullity.</p> <p>8. Plaintiff filed in the district court his bill for a new trial, and therein set forth, in substance, that he had previously sued the defendants in the same court on promissory notes given in October,- 1861, for merchandise; that the defendants pleaded numerous fictitious pleas, and upon them obtained continuances by false affidavits, but on the immediate eve of the trial, and in the absence of the plaintiff, they filed for the first time the defense that the notes were payable in Confederate money, which defense was wholly false and untrue ; that defendants procured two witnesses to swear falsely in support of such Confederate money defense, and plaintiff’s counsel, having no reason to anticipate such defense or false testimony, was taken by surprise thereby, and was unable to countervail it; that the verdict and judgment went against plaintiff on that defense, and in consequence of plaintiff’s absence, his counsel could not have his information and assistance in preparing a proper motion for a new trial, and Ms motion therefor was overruled; that plaintiff lived on the frontier, and his constant presence at home was necessary to the protection of his wife and home from the Indians, and he had no reason to anticipate such a false defense would be set up by the defendants; that smce the