Overton v. Blum

Citations

• 50 Tex. 417

Syllabus

<p>1. Practice—Hew trial.—A new trial is never in fact granted after the adjournment of the term of the court at which the judgment was rendered.</p> <p>2. Same—Rehearing.—When a judgment has been obtained by fraud, accident, or mistake, and without any want of diligence on the part of the. party against whom it was rendered, the District Court, in the exercise of its equity powers, may grant relief by reexamining the case on its merits, and granting such relief as equity and justice may demand.</p> <p>3. Injunction—Rehearing.—To warrant an injunction, pending a petition for rehearing of a judgment of a court having jurisdiction of the parties and of the subject-matter, in addition to fraud, accident, or mistake, the applicant must show merits in his case.</p> <p>4. Application for rehearing must show injury by the judgment.—Judgment was rendered for plaintiff. Motion for new trial was overruled July 28. On August 10 following the defendant presented a statement of facts to counsel of plaintiffs. The District Court adjourned August 11. The judge presiding had not sufficient time to prepare a statement of facts, and it was agreed by the counsel of the parties, with concurrence of the judge, that the statement of facts should be prepared during vacation. Defendant gave notice of appeal, and perfected it by tiling bond. The case was affirmed on certificate. Petition being made for rehearing, setting out these-facts, and it not appearing that the plaintiff in the bill had merits in the original case : Held—</p> <p>1. That the failure of the judge to prepare and file a statement of facts was not ground for the relief sought.</p> <p>2. Where such showing for rehearing failed to show that the appeal of which plaintiff in the bill was deprived would have been with effect, the loss of the right to appeal was not an injury.</p> <p>5. Practice.—Counsel urged to diligence iii preparation of cases for appeal, upon the closing of the trial from which it is proposed to appeal.</p>