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17 Tex. 437

Watson v. Newsham

Texas Supreme Court

Decided July 1, 1856

Texas Supreme Court · decided 1856-07-01

Error from Travis. Tried below before the Hon. Thomas H. DuYal. The petition alleged that the judgment was obtained Sept. 28th, 1853 ; original execution issued Dec. 1st, 1853, returned no property ; alias execution issued Jan. 25th, 1854, on which some property was sold ; and that the pluries execution, which the plaintiff sought to enjoin, was issued June 11th, 1855.

Good law ✅— No negative treatment on recordhow we know

Decided 1856-07-01

How this case has been cited

Cited by 8 later decisions — most recently July 1932

8 state decisions

30185618601870188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Lipscomb, J.

¶1This 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 *438on 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.

¶2We 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.

¶3Judgment affirmed.

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