On Motion for Rehearing. In appellant's motion for rehearing, he calls our attention to an error in the original opinion. It seems that he did have an assignment directed to the failure of the trial court to submit the issue of whether or not the plaintiff in this suit had a meritorious defense to defendant's cause of action set up in cause No. 16684. But this issue, even if answered in the negative, was not controlling or binding upon the conscience of the trial court. The majority conclude that an independent suit for a new trial is an equitable proceeding, and that in case a jury should be had the answers of the jury to the special issue submitted are merely persuasive, and not binding upon the court, and no more was required than to make a prima facie showing of a meritorious defense. Davis v. Terry,33 Tex. 426. They believe that such prima facie showing was made in the instant case.
The motion for rehearing is accordingly overruled.