Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 39
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184. O'NEILL V. BROWN. 39
Opinion of the court.
Ordinarily the plaintiff takes the burden of establishing his cause
of action. In the original cause of Brown v. O'Neill the burden
of proof was upon Brown. If O'Neill had been present at that
trial, and a judgment against him had been set aside upon his
motion, the case would have stood just as if no trial had taken
place; and upon the next trial Brown would still have had the
burden of proof. But when a new trial takes place, under the circumstances
of this case, who has the burden of proof? The statute
says that the new trial may be granted to the defendant "for good
cause shown, supported by affidavit." Evidently this language indicates
that the "' good cause " spoken of must appear in the petition.
But when the new trial is granted the parties are not sent back to
try the old case as it stood upon the docket. They try upon the
allegations of the new petition and the answer of the other party.
Taylor v. Fore, 42 Tex., 256. Thus the defendant in the old case
becomes, in some sort at least, a plaintiff in the new, and he would,
doubtless, be bound to show, at least priwafacie, that the former
judgment was wrong and should be set aside. This O'Neill has
clearly done.
It appears from the record that Brown instituted the former suit
on January 20, 1879. He admits the partnership; that O'Neill was
to own one-third of the property and to pay one-third of the costs
and charges. He appends an exhibit of the sums which he had (as
he says) paid out for the firm, running from November 3, 1877 -
the date of the purchase of the land-down to December 23, 1878.
The first item in the account is a payment on the land of $1,000,
made on November 3,1877. Another, and, as it seems, the last payment
on the land was made December 9, 1878, $1,740.60. He admits
that O'Neill had paid more than $1,000 during the first month
of the partnership.
It appears by the evidence on the last trial that both the partners
lived on the land during the year 1878; that O'Neill worked faithfully
on the farm during that year; that the crop made was worth
from $600 to $750, and the evidence leaves no doubt on the mind
that Brown got the benefit of the whole crop. The evidence also
shows that for the year 1879 Brown had the use of the entire property,
including O'Neill's interest, and it also shows, at least prima
face, that he never accounted for it. The same is true of the subsequent
years down to the last trial.
Besides, it appears in the record that Brown had a large family,
consisting of his wife and ten children. O'Neill alleged that his
partner had, in his account, charged up against the partnership the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/55/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .