J. W. Smith v. M. G. Thomas, 1 White & W. 370

Opinion by Winkler, J. § 677. Fraud and sharp practice in obtaining judgment. On the 10th of March, 1877, appellee recovered judgment against appellant before a justice of the peace .for $200 and costs, and attempted to assert a lien on certain property before that time levied on by virtue of a distress warrant. The judgment recites that the parties appeared and announced ready for trial, and that the defendant, in open court, confessed that he wa.s indebted to the plaintiff in the sum claimed.

Appellant sued out a writ of certiorari to remove the cause to the county court, stating, among other things, that he had a good defense to the suit, stating his defense, and saying that he went with his attorney to the. office of the justice of the peace at the time appointed for trial, and while there a compromise was agreed on, and, among other things, the appellee agreed to dismiss the cause without costs to appellant; that he confided in this agreement and the promise of appellee, left the place, and that after he so left, the appellee, disregarding.his agreement, caused the judgment to be so entered by the justice, which, he says, was a fraud upon his rights, and that he did not discover the fraud until it was too late to move for a new trial in the justice’s court and give notice of appeal.

In the county court the case was dismissed, on motion of appellee, on various grounds. This was error. The county court should not have dismissed for any of the grounds set out, but should have tried the case. Reversed and remanded