R. T. Bryorly v. John H. Clark, 48 Tex. 345

Gould, Associate Justice. This was an original suit, to have a judgment set aside, on the ground that it was procured by the fraudulent violation of an oral agreement between counsel, not to take up the case before a certain day, and that the judgment thus obtained, for $1,811.68, was unjust, except the sum of $291.31. The law has long been settled, that such applications must show sufficient matter to have entitled the party to a new trial, if applied for at the term, and a sufficient legal excuse' for not having then made his application. (Cook v. De La Garza, 13 Tex., 444; Goss v.

McClaren, 17 Tex., 107; Caperton v.

Wanslow, 18 Tex., 132.) “ The application,” says Justice Wheeler, “ 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 principle in the one case as the other, only with this qualification, that as the 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 term.” (Vardeman. v. Edwards, 21 Tex., 740; Metzger v.

Wendler, 35 Tex., 385.) The present application is peculiar, in that it appears to have been made during the term; and the question is presented as to the right of a party to appeal to equity for a new trial, when the remedy by motion was still open, unless, at least, he states a sufficient excuse for failing to resort to the more simple and legal remedy.

It seems clear, both on principle and authority, that if it were still in his power to move for a new trial in the court that tried the cause, he could only be justified, if at all, in resorting to a separate suit, in the nature of a bill in equity, by showing that under the circumstances the remedy by motion was inadequate or uncertain. (Vardeman v.

Edwards, supra, and authorities cited.) Such being the rule, the petition in this case was defective; for it does not attempt to show any excuse for not making a motion for new trial, embodying in it the same matter, unless, indeed, such excuse "is to be found in the fact that a motion for new trial, setting up only a part of the same matters imperfectly, and unsupported save by the affidavit of the party, had, in fact, been made and overruled.

We may, perhaps, infer, if in applications of this sort matters so important can be supplied by inference, that this motion was made hastily, without opportunity for conference with the counsel who had, it was claimed, agreed with Clark, the original plaintiff, and himself, as attorney, as to the time when the case should be taken up. If so, when that counsel' returned, it was still open to him to make another motion. The judgments of the court are under its control during the term, and a second motion for a new trial may be allowed. (Puckett v. Reed, 37 Tex., 308; Wood v. Wheeler, 7 Tex., 16; Sweeney v.

Jarvis, 6 Tex., 39.) Instead of doing this, or showing any good reason for not doing it, the plaintiff applies, during the term, to the same judge before whom such a motion could have been heard, and obtains an injunction staying proceedings. Had a motion for new trial been made, embodying in it the same matter and supported by like exhibits, the court, if satisfied therewith, might have set the judgment aside, and had the case retried, even during the term. If the court had refused, on proper showing, to grant such motion, though it were a second motion, the party had his legal remedy by appeal.

It is true, as contended by appellant, that equity may grant a new trial, after a motion for new trial has been overruled. But when the more direct remedy of a second or amended motion is equally available, there is no excuse for resorting to the circuitous remedy of a separate suit. The petition, as a petition for a new trial, fails to show a sufficient excuse for not having made the same showing by motion. We have the less hesitation in affirming the judgment, because, whilst the petition abounds in positive averments of the injustice of the judgment, the exhibits filed do not substantiate .the charge.

The agreement originally sued on shows a purchase of 183,113 feet of lumber; yet, in his statement, Bryorly charges himself with^only 130,334 feet, and gives no account whatever of the balance. Again, in the exhibit he charges himself with only 21,500 feet of merchantable lumber, and yet Clark is charged with having -received on his orders 45,593 feet, reasonably worth $1.50 per hundred,—a price which would indicate that at least that amount was merchantable.

Yet, again, the fair construction of the contract requires that Clark’s orders for lumber be credited simply on the amount of lumber purchased, whereas they are charged to him at an advanced price. According toBryorly’s exhibits, Clark received on orders, only 52,909 feet of lumber, and this, and $20 in cash, is all that he has received for the 183,113 feet of lumber. The exhibits fail to .support the statement that the purchase amounted only to $1,073.25, or that the balance was anywhere in the neighborhood of the balance admitted.

The appellant cannot complain if his exhibits are accepted as more accurate than his wholesale statements. Counsel for appellant seems to object that the court, after sustaining exceptions to the entire petition, reconsidered its ruling, and gave him an opportunity to prosecute his claim for damages. This was no more than the court had a right to do, and no more than was proper to be done. If the change in the ruling operated to his prejudice, he should have applied to the court on that ground for such relief as he wanted, or should have, at least, shown by bill of exceptions how it was that he was prejudiced.

The criticism on the action of the court is uncalled for, and is expressed in terms which cannot be allowed to pass without notice. The judgment is affirmed. v Affirmed.