First Nat. Bank of Ft. Worth v. Henwood

CONNER,

C. J. This was a suit by injunction to restrain the execution of a judgment by default in favor of appellee, Henwood, against the appellant, the First National Bank of Ft. Worth, for the sum of $226.05, rendered on November 7, 1911. It was alleged that prior to the rendition of the judgment appellant had been assured by the ap-pellee under circumstances specified that judgment would not be so taken' against it. The case was submitted upon special issues, and the jury found facts sufficient to excuse appellant from its failure to answer ■in the suit in which the judgment was rendered, but further found that knowledge of the fact of the rendition of the judgment had been obtained by the officers of the appellant bank several weeks prior to the adjournment of the term of court at which the judgment was rendered. Both parties moved the court for the entry of judgment, but the court granted the motion of appellee, and appellant has appealed.

[1] Appellant has not brought up with the record a statement of facts that we can consider. What purports to be a statement of the facts proven upon the trial has been filed, agreed to and signed by the attorneys for both parties, but it is not signed nor approved by the trial judge. The statement therefore cannot be considered. See Vernon’s Sayles’ Texas Civil Statutes, art. 2068; Stone v. McClellan & Prince, 36 Tex. Civ. App. 364, 81 S. W. 751; Rawls v. State (Cr.App.) 150 S. W. 431; Railway Co. v. Keen, 73 S. W. 1074; Railway Co. v. Looney, 42 Tex. Civ. App. 234, 95 S. W. 691.

[2, 3] We have found but one question that can be considered in the absence of a statement of facts. The question is substantially raised under the fifth to the eighth assignments, inclusive, and is whether the trial court erred in rendering judgment for appel-lee, and thus denying appellant’s right for a new trial in the original case, on the findings of the jury. The findings are such as entitle appellant to the judgment, save for the fact that the verdict shows that knowledge of the judgment by default was brought home to the officers of the bank 'in time for relief in the court below several weeks before the adjournment of the term, as above stated.

Article 2019, Vernon’s Sayles’ Texas Civil Statutes, provides that:

“New trials may be granted and judgments may be set aside or arrested upon motion for good cause on such terms and conditions as the court shall direct.”

Article 2023 reads:

“All motions for new trials, in arrest of judgment, or to set aside a judgment, shall be made within two days after the rendition of the verdict, if the term of court shall continue so long; if not, then before the end of the term.”

Appellant’s insistence is that, in view of the fact found in this case that more than two days had elapsed after the rendition of the judgment before knowledge of the judgment was obtained, it is immaterial that its petition for a new trial was not filed until a subsequent term of the court. We do not feel prepared to adopt this contention. It is well settled that a suit to set aside a judgment after the expiration of the term is in the nature of a new suit, and that the plaintiff, complaining of the judgment, must not only show sufficient cause to authorize the court to set it aside, but must also show a good defense to the action. But we know of no case in which the courts have indulged such new suit and upheld the remedy by an appeal to the extraordinary writ of injunction, where it plainly appears that the facts might with proper diligence have been presented to and determined during the term by the court rendering the judgment. Diligence must be shown, the appeal to the equitable powers of the court must be reasonably prompt, or an excuse shown for delay.

[4, 5] It is to be observed that article 2019, quoted, is in general terms; the court, on motion, for good cause, is granted general power to set aside' judgments rendered by it ; and, as ordinarily construed, article 2023 is directory, and not mandatory. Numerous cases might be cited upholding the action of the trial.court in granting motions for new trial filed after the two days specified in the statute. Indeed,- we think it generally held that the court has the discretion to do so. See Dallas Oil & Refining Co. v. Portwood, 68 S. W. 1017; Railway Co. v. Kelley, 99 Tex. 87, 87 S. W. 660; Berhns v. Harris, 150 S. W. 495. Had appellant, therefore, upon its discovery of the rendition of the judgment by default now complained of, promptly presented the facts upon which it now relies to the trial court, it would, upon the proof of such facts, doubtless have granted relief. This was not done; and because of such failure it is evident that the court below denied relief in this action. In so doing we are unable to say that the trial court erred.

All assignments of error are overruled, therefore, and the judgment is affirmed.

null.

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