John Watson v. Joseph Newsham, 17 Tex. 437

Lipscomb, J. This was a suit brought by the defendant in error, for an injunction, to enjoin an execution sued out against Mm by the plaintiff in error, and to enjoin a sale of property on which the execution was levied. The injunction was granted, and citation served on the plaintiff in error, who failed to answer and the injunction was perpetuated. The petition alleges as the main ground on which the injunction is prayed, that the execution was issued after more than twelve months had elapsed from the issuance of the former execution. The execution purported to be a pluries.

The plaintiff in er-for moved to set aside the judgment by default, on the ground that his counsel had been deceived, not expecting the case would be called so soon, and that he had prepared an answer, hut had forgotten it. The motion was overruled by the Court. We believe there were no sufficient grounds shown for opening the judgment by default. There was no showing that there was any good defence, nor any showing that there was any defence whatever.

On an application to open a judgment by default, it should be shown that there was a good defence, and good grounds shown why it was not set up at the proper time ; in both of which there was a total failure. The default admitted the truth of the facts charged, and there was nothing to prevent the Court from making a decree without reference to the jury. The judgment is no bar to a suit on the judgment on which the execution had been sued out, or to a proceeding to revive that judgment. The judgment of the Court below is affirmed. Judgment affirmed.