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. Page: 256
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256 TAYLOR, KNAPP & CO. V. FORE. [Term of
Opinion of the Court.
TAYLOR, KNAPP & Co. v. D. W. FORE.
1. INJUNCTION, WHEN ISSUED TO STAY PROCEEDINGS UNDER JUDGMENT.
When a defendant, through accident or mistake, and without default in
the proper degree of watchfulness and care required of careful men in
their own cases of equal importance, fails to present his defense fully,
the court will, in its discretion, grant relief by injunction to stay proceedings
under the judgment, and re-examine the case.
2. JUDGMENT, WHEN INTERLOCUTORY. When, after the expiration of the
term, an injunction is issued to stay proceedings under a judgment,
and, upon a trial, a general verdict is rendered for the plaintiff, a judgment
should be rendered disposing finally of the case; a judgment upon
such verdict permitting the plaintiff to plead defenses which he had
neglected in the former suit and continuing the cause, is interlocutory,
from which no appeal lies.
EiEROR from De Witt. Tried below before the Hon. Henry
Philips, Lackey & Stayton, for plaintiff in error.
WI. . ? Friend, for defendant in error.
ROBERTS, C. J. This is a suit by Fore to set aside a judgment
by default rendered against Fore & Shelton, partners,
on a note executed by them.
After the suit on the note was brought by Taylor, Knapp
& Co., Fore made his application to become a bankrupt, and
Taylor, Knapp & Co. proved up their claim, to wit, this note,
then in suit, in the Bankrupt Court. Fore obtained his discharge
in bankruptcy; shortly after which, Taylor, Knapp &
Co. took a judgment by default, no answer having been filed
by the defendants therein, Fore & Shelton, and Fore not
having pleaded his discharge.
Upon these facts Fore obtained an injunction to stay the
execution issued upon the judgment, and sought to have the
judgment as to him set aside and annulled, and Taylor, Knapp
& Co. enjoined fiom enforcing the same. Taylor, Knapp &
Co. filed exceptions and answer, and the exceptions not being
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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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/264/: accessed March 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .