1875.] SEDBERRY v. JONES. 11
Opinion of the court.
LE. W. Burl and H. McKleKcy, for appellant.
.D. B. Calberson, for appellee.
GOULD, ASSOCIArTE JUSTICE.-On the 18th day of January,
1872, appellant filed, under oath, an application to set
aside a judgment by default rendered on the 17th, setting
up a meritorious defense, as well as the defense of limitation
against part of the claim established by the judgment
against his intestate's estate, and alleging as excuse for
failing to defend that there had been negotiations for compromise
between plaintiff's attorney'and defendant, and
that he referred the plaintiffs attorney to his (defendant's)
attorney, and is advised that they agreed to a compromise.
The sworn statement of the defendant's attorney is to the
effect that he understood from plaintiff's attorney that the
compromise was accepted.
On the other hand, plaintiff's attorney, under oath, denies
that there ever was any agreement, direct or indirect,
between himt and defendant's attorney to compromise,
pass, or otherwise dispose of the case, but states that on
one occasion defendant's attorney offered $425 as a compromise,
which was rejected. His affidavit further shows
that defendant's attorney was in the court room when the
writ of inquiry was executed, and that the default was
taken long after default day had passed, simply in accordance
with affiant's custom in cases where he supposed
counsel would appear.
The application to set aside the default was refused, and
the defendant appealed.
The affidavits of appellant and his attorney show that
they supposed that a compromise had been substantially
agreed o0n. The counter affidavit negatives any such
agreement, but fails to show that defendant and his attorney
did not believe such agreement to have been made.
The fair conclusion is that the defense was not plead because
of this belief. Whether the facts as they occurred
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed May 27, 2016.