On Motion for Rehearing.
Counsel for appellant in an able manner presented the contention, in substance, that article 4643 of our Revised Statutes, authorizing the issuance of injunctions, as construed by our Supreme Court in the case of Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, authorized the writ of injunction involved in this case because of the equitable matter which is set up in his petition, regardless of whether appellant made application for new trial in the court below during the term. In other words, his contention is that, if the matters alleged by him constituted such equitable grounds as would authorize the court to set aside the judgment of which he complains, his most appropriate remedy, and indeed the only adequate remedy that he had, was to institute an independent suit, as he did do at the succeeding term of the court, to set aside the judgment. As stated in our original opinion, we think there can be no doubt but that the facts alleged by him, and indeed found in this case below by the jury, would in equity have entitled appellant to set aside the judgment by default of which he complains, and to have a new trial in that case. See Fox v. Robbins, 62 S. W. 821, and authorities therein cited. But say our Supreme Court in Vardeman v. Edwards, 21 Tex. 739, 740:
“The principles which govern the granting of new trials, upon application by petition after the term, are the same in our practice as those which govern similar applications made during the term. * * * The application, whether made before or after the term, is addressed to the same court, having cognizance of both legal and equitable causes; and there can be no reason why it should not be governed by precisely the same principles in the one case as the other; only with this qualification, that as the rule of law requires that the application be made during the term at which the verdict is rendered, if this be not done, the party must show an equitable excuse to entitle him to a hearing of his application after the terms” — citing a number oi cases.
The case of McGloin v. McGloin, 70 Tex. 634, 8 S. W. 305, was one where the appellant sued to set aside a judgment of a preceding term of the court, and the court say:
“The only question is as to the sufficiency of the petition. This is tested by the inquiries: First. Does it show a meritorious defense? Second. Does it show that by fraud, accident, or that by act of the adverse party he was prevented from making his defense on the trial? And, third. Has sufficient legal excuse been shown for not making the application during the term?”
These cases, as also the cases of Caperton v. Wanslow, 18 Tex. 125, Ragsdale v. Green, 36 Tex. 194, Bryorly v. Clark, 48 Tex. 345, and Rodriguez v. Espinosa, 25 S. W. 669, all support the conclusion announced by us in our original opinion that it was necessary that appellant, in order to have availed himself of the fraud of which he complained, should have presented the matter to the trial court during the term at which the judgment by default was rendered, and that, not having done so, and not having presented any excuse for his failure in this respect, he was not entitled to relief in a new and independent suit therefor, as this one was.
The motion for rehearing will be overruled.