Nevins v. McKee , 1884 Tex. LEXIS 114 ( 1884 )

Willie, Chief Justice.—

The object of the present suit was to set aside a judgment duly rendered in a garnishment proceeding against Kevins, to retry the issue between the parties determined in that cause, and have a decision made as to whether the plaintiff in that judgment, or another party who claimed to own the note, was entitled to recover against the garnishee. '

In fact it was an attempt by petition, filed after the adjournment of the term of the court at which the judgment was rendered, to obtain a new trial of the cause which had resulted in such judgment.

A court of chancery has power to grant such relief, but it will not do so except upon facts which show the clearest and strongest reasons for its interposition.

It was held by this court in Johnson v. Templeton, 2 Tex. L. Rev., 269 (60 Tex., 238), that it is not sufficient to show that injustice has been done, or that the plaintiff had a good defense which he was prevented from making upon the trial. But he must further show that he has not resorted to chancery because of any inattention or negligence on his part. He must show a clear case of diligence as well as of merit;-that he has a good defense which he was prevented from making by fraud, accident or the acts of the opposite party, wholly unmixed with any fault or negligence on his part.

Here it is not pretended that the appellant was deprived of his defense by the fraud of any one, or by any act chargeable to the plaintiff in garnishment. If his failure to appear and defend the action can be said to have been due to accident, McKee had nothing to do with bringing it about, but it was owing solely to the negligence of Kevins or of the attorney to whom he intrusted the defense of the cause.

The attorney may have misunderstood him as to the character and extent of his employment. If so, it was the fault of the appellant in not being more definite in making the contract, and McKee should not be made to suffer for such default.

But according to the appellant’s own testimony as given by himself on the trial, if the attorney at the time of his employment misunderstood the nature and extent of the duties he was to perform, he had full notice of them afterwards and before the trial of the cause. When the appellee, McKee, had interrogatories served upon Kevins to prove up his case, Kevins handed them to the attorney, who said he would give them attention. It was because this promise was not performed that the cause was not defended, and we cannot see how appellant can base an equity for a new trial upon the default of his attorney, or even upon his misconception of a matter about which there seemed so little chance of making a mistake.

With such a state of facts before the jury, and the question of homestead withdrawn from their consideration, the court was fully justified in charging them to find for the appellees, and the judgment is affirmed. Hedgepeth v. Robertson, 18 Tex., 858; Eason v. Eason, Galveston Term, 1884 (ante, p. 225).

Affirmed.

[Opinion delivered April 18, 1884.]