56 COOK V. STEEL. [Tyler Term,
Opinion of the court.
not recover. The same fact is recited in the judgment
against him, and fiom this judgment he does not appeal,
and his co-defendant and the appellant cannot be heard to
complain, because the damages were assessed by the clerk
without a jury, or to assign errors for him. The judgment
ascertained the amount due from Carmichael to appellees,
and the foreclosing of the mortgage, to the extent of the
value of the cotton, for one hundred and thirty-three dollars:
ascertained the extent of defendant Cook's obligation
under his replevy bond; and this disposes of the first assignment
of errors. (Hendrick v. Cannon, 5 Tex., 248;
Herndon v. Bremond, 17 Tex., 432.)
The second assignment is that the court erred in overruling
the motion to set aside the judgment by default
It is not sufficient to state, on an application to set aside
a judgment, that the party applying for it believes that he
has a good and lawful defense to the action. But the facts
must be stated showing a meritorious defense. The facts
from which it would appear that appellant, by his purchase,
became the legal and equitable owner of the cotton, are
not disclosed in his application, nor does he state the facts
upon which he relies to establish the invalidity of the mortgage.
It is alleged that appellant purchased the cotton at
a constable's sale under a valid judgment against Carmichael,
in good faith and for a valuable consideration, without
stating that he purchased without notice, as charged in
the petition, as should have been done if warranted by the
We think the application was insufficient. (Foster v.
Martin, 20 Tex., 118.)
This motion was filed in connection with the motion in
arrest of the judgment, which was also overruled by the
court, and assigned as the fourth error.
It is contended for appellant, in support of the motion
in arrest of judgment, that the plaintiffs must have averred
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 December 1, 2015.