Although the contrary might be inferred from some of the earlier decisions, (8 Tex., 342; 9 Tex., 69; 17 Tex., 114,) it must now be regarded as settled that a new trial is never in fact granted after the adjournment of the term of the court at which the judgment is rendered, no matter what are the grounds urged in support of the application. (Taylor, Knapp & Co. v. Fore, 42 Tex., 256; Roller v. Woolridge, 46 Tex., 485.) But though a new trial is never granted in terms after the adjournment of the court rendering the judgment, and there can be no such thing as another trial of the case at law after it is once finally decided, it is not to be questioned that when a judgment has been obtained by fraud, mistake, or accident, and without any want of proper diligence on the part of the party against whom it is rendered, the District Court, in the exercise of its equitable powers, may grant relief by reexamining the case *424on its merits, and granting such relief as equity and justice may demand and require. To call, however, for the interposition of a court of equity, and to warrant the staying of the enforcement of a judgment rendered by a court having jurisdiction of the parties and subject-matter of the suit, it is not sufficient that a mistake or accident may have occurred in the course of the proceeding, hut it must also be shown that there is merit in the applicant’s case, and but for the interposition of the court he must sustain irreparable injury, to which he has in no material manner contributed. “If Adams, in his petition,” said this court, in the case of Roller v. Woolridge, “had stated good, equitable grounds for setting aside the judgment, which was a judgment in an ordinary action at law, the exceptions to it for want of equity should have been overruled, not for the purpose of granting a new trial, but that this suit in equity, as an original proceeding for relief against a judgment at law, might be tried as any other suit seeking equitable relief. The rule here announced was definitely settled by this court in the case of Taylor, Knapp & Co. v. Fore, 42 Tex., 256. If, on the other hand, the equitable grounds set forth in the petition were not sufficient to set aside the judgment, upon its being excepted to and dismissed for want of equity, the judgment would be left standing, to be executed as a valid judgment.” And says the Supreme Court of Georgia, in the case of Kohn v. Lovett, 34 Ga., 180: “It was not beyond the reach of a court of equity to interpose and take jurisdiction of the parties and subject-matter; and if it appeared there was merit in the case, and injustice would result from the act or-mistake of the judge in the premises, it was the duty of a court of equity to enjoin the collection of the judgment and stay proceedings until a fair and full hearing upon the merits had been had.”
Admitting that the delay of appellant in presenting to appellees’ counsel his statement of facts from the 28th of July to the 10th of August, (the day before the time fixed by law *425for the adjournment of court,) is not such negligence as precluded him from complaining of the failure of the presiding judge to prepare a statement of facts before the adjournment of court, or to file such statement, as agreed by the parties, with the papers of the case in time for appellant to prosecute his appeal, does the mere failure of the judge to make out and file such statement, and the subsequent affirmance of the judgment on certificate without reference to the merits, authorize the District Court to grant a new trial or to enjoin the collection of the judgment ? Surely it cannot be insisted that a judgment of the District Court and its affirmance by this court can be set aside or enjoined, on application to the District Court, without its being made to appear, prima facie at least, by the applicant, that he had a meritorious defense to the action, and but for the failure of the judge to make out the statement of facts this court might, and probably would, have reversed the judgment and granted him a new trial. It is a universal rule that the aid of a court of equity can never be invoked by a party who does not show merit. Certainly the overruling and setting aside a judgment of a court having jurisdiction of the parties and subject-matter of the suit cannot be thought to be an exception to this general rule. Appellant, however, made no attempt to show merits. His petition seems to have been framed upon the theory that the District Court, by reason of the fact of the failure of the judge to file the statement of facts as agreed, and his being thereby deprived of a full review of the judgment by this court, could set aside its former judgment and order a new trial of the original suit in that court, just as if a new trial had been granted on an application during the term at which the judgment was rendered.
It is not pretended that appellant was in any way hindered or obstructed in making his defense to the original action in the District Court. It is insisted merely that he did not get the benefit of his appeal to this court, and could not have done so with any hope of success without a statement of facts, ap*426proved by the judge. But, we ask, why should a court of equity interfere and grant relief unless there was merit in his appeal ? Surely no one would claim relief because by accident or mistake he has lost the opportunity of appealing from the judgment of the District Court, if it appeared that his appeal was taken merely for delay; and if not, as it must be conceded, it is incumbent upon the party applying to a court of equity for relief to show equity. Appellant, when he appealed to equity for relief, because, as he says, he has lost the benefit of his appeal for want of a statement of facts, should show, ■prima facie at least, a meritorious ground of appeal; and that had the statement of facts been filed, so that he could have presented his appeal to this court as he designed, the judgment might, and probably would, have been reversed. But an examination of the record before us shows no reasonable ground to believe such would have been the result if the statement of facts had been filed. Admitting the statement of facts prepared by appellant to be strictly correct, (though it plainly appears upon its face that it is glaringly defective,) and looking at the case in the most favorable light which can be taken of it for appellant, it can merely be said that he claims that he has lost by the failure of the judge to make out and file a statement of facts the privilege of asking this court to review a verdict of the jury in a case in which the testimony was conflicting, and on this account the court would unquestionably have been forced to affiim the judgment.
It is, therefore, impossible for us to say, on the case as made by appellant, that he has suffered any such injury by the failure of the court in the matter complained of, as would warrant a court of equity to enjoin or set aside the previous judgment. The result may have worked a hardship upon appellant; but if so it is not made apparent to us by this record. The most we can say of it is, that it exemplifies the impropriety of parties postponing, as is too often the case, until the adjournment of the court, the preparation of their cases for appeal; and *427instead of having the statement of facts approved and filed during the term, as the statute evidently contemplates, agreeing that this may be done after adjournment. Admitting that such agreements are legal and binding,—as to which, however, I at present express no opinion,—if there is a failure to complete the statement of facts before the adjournment of the court, through the delay of the party desiring to bring the case to this court, he has no cause to complain of the loss of the benefit of such statement on the hearing of the case here. But if the parties cannot agree, and the party who recovers the judgment neglects or refuses to present his counter-statement in time to enable the judge to make the statement in due time, and he is not willing to accept and certify the statement furnished him by the other party, he may, in his discretion, hold counsel as in contempt and punish them therefor, or set aside the judgment and grant a new trial. The right of appeal is guaranteed to every litigant in the District Court, and the court should see that it is not lost to or taken from him, when he is in no default,- by the fraud or negligence of his adversary.
There is no error in the judgment.of which appellant can justly complain, and it is affirmed.
Affirmed.