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: 48
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48 HEIRS OF BROWN v. BROWN. [Galv. Term,
Opinion of the court.
by fraud. In the court below exceptions were sustained to the petition
and trial amendment, and the cause was dismissed.
The objections as presented by the exceptions were these: That
the suit was brought more than two years after the judgment was rendered,
and hence came too late; that appellants did not sufficiently
show but that by reasonable diligence they might have discovered
the fraud prior to the rendition of the judgment, or at least long
before the time they claimed to have discovered the same; and that
a portion of the appellants had knowledge of such facts as put
them upon inquiry before the rendition of the judgment sought to
be annulled.
This proceeding is in the nature of a bill of review to vacate a
judgment rendered upon service by publication, and, in analogy to
the statute regulating that proceeding, must generally be instituted
within two years from the rendition of the judgment. Weaver v.
Shaw, 5 Tex., 286.
But certain reasons are alleged in the petition, by which the delay
in bringing the suit is sought to be excused. It is alleged that certain
of the appellants who were parties to the partition suit were
minors, and were represented by guardian ad litem, and were still
minors at the institution of this suit; and others were then and still
are laboring under the disability of coverture. Also that the
plaintiff in the partition suit, who was the father and grandfather
of appellants, studiously and purposely concealed from them any
knowledge of the frauds complained about in this case. While
in the trial amendment it is alleged that, pending the partition suit,
two of the appellants, who were then adults, obtained knowledge
of facts that put them upon inquiry; that they called upon the
plaintiff, their father, who, by his representations, satisfied them
to the contrary, and therefore they made no defense to that suit.
Appellee claims that the disability of non-age and coverture does
not exempt such parties from the rule that the suit must be brought
within two years after the judgment was rendered.
It is in effect provided by art. 3222 of the Revised Statutes that
if a person entitled to bring any action, not mentioned in chapter
1 of the title on limitations, is laboring under disability, then the
time during that disability shall not be deemed a portion of the
time limited for the commencement of the action.
This article appears to be sufficiently comprehensive to embrace
all actions not mentioned in the chapter to which reference is therein
made.
If a judgment is rendered upon service by publication, when 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/m1/64/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .