Reed v. Bryant , 291 S.W. 605 ( 1926 )

On Motion For Rehearing.

Respondents insist that we should discuss and determine the following grounds alleged by them as reasons why the former judgment in the cause should be vacated and the injunction issued to restrain its collection should be sustained, to wit:

(1) That the former judgment was excessive, to the extent of $65 for lack of sufficient pleadings to support it.

(2) That the Thomasons, against whom that judgment was rendered, were taken by «surprise during the trial of the case.

(3) That there was a lack of necessary parties. to that suit, namely, Travis county and Thaxton.

In Brownson v. Reynolds, 77 Tex. 254, 13 S. W. 986, which was a suit to set aside a judgment rendered in a former suit, the following was said:

“It is also a fixed rule that a court of equity will not interfere to set aside a judgment and grant a new trial except upon a showing of strict diligence in the presentation of the cause, and upon proof that, after doing all that such diligence required to be done, he had been deprived by fraud, accident, mistake, or other uncontrollable circumstance of the opportunity of properly presenting his case upon the trial. And if. after it has become apparent that he must fail in his suit, he fails to avail himself of all means at his disposal to arrest the judgment and to exhaust every legal remedy to vacate it after it has been rendered, relief will be denied. That the complainant has a meritorious case, and that he has been compelled to suffer an adverse judgment by circumstances wholly beyond his control, are the fundamental grounds upon which the equity to. demand a new trial must rest.”

To the same effect is Kimmell v. Edwards (Tex. Civ. App.) 193 S. W. 363 (writ of error denied), and other decisions there cited; also Foust v. Warren (Tex. Civ. App.) 72 S. W. 406; Rose v. Darby, 33 Tex. Civ. App. 341, 76 S. W. 799.

The record shows that the Thomasons appeared and filed pleadings in the former .suit and took part in the trial of the cause. And, since they had ample opportunity to there present the matters mentioned above, they are in no position to complain of the same matters as a ground for the second suit to vacate the former judgment. Hill v. Brown (Tex. Com. App.) 237 S. W. 252; Southern Surety Co. v. Tex. Oil Clearing House (Tex. Com. App.) 281 S. W. 1045; and authorities cited above.

Furthermore, independently of the rule of decisions announced above, there is no merit in the contention that Travis county and Thaxton were necessary parties to the suit, since their rights were in no manner involved in the controversy determined.

We adhere to the conclusions reached by us on original hearing of this proceeding, notwithstanding the argument and authorities cited by respondents in their motion for rehearing, which we have carefully consid ered. To hold otherwise would mean that, should the Thomasons be permitted to maintain the suit to vacate the former judgment rendered against them, which has become final, then they would have the right to vacate another judgment adverse to them on the same grounds alleged in the second suit; and successive suits could be thus brought, and the litigation thereby continued indefinitely. If such were the law, then the binding effect of a final judgment rendered by a court of competent jurisdiction of the parties to the suit and of the subject-matter in controversy would be a myth.

The motion for rehearing is overruled.