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: 258
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258 TtAYLOR, KNAPP & Co. v. FORE. [Te1rm of
Opinion of the Court.
cised a familiar jurisdiction over trials at law, and compelled
"the successful party to submit to a new trial, or to be perpet"ually
enjoined fiom proceeding on his verdict. But the
"practice has long since gone out of use, and such a jurisdic"tion
is rarely exercised in modern times, because courts of
law are now in the liberal exercise of the power of granting
" new trials." (Floyd v. Jane, 6 Johns. Ch. t., 479-481, and
17 Texas R., 118.) One reason of this jurisdiction going out
of use, particularly in the American courts, was, as it may be
reasonably supposed, that the verdict and judgment were rendered
in the same court, and a very short time usually intervened
between the verdict and the judgment, whereas in the
English courts it was different.
Justice Story presents the view which, it is believed, is more
in harmony with the jurisdiction of courts of equity, in regard
to judgments at law in this country. le says: " And although
" some of the earlier decisions look almost like granting new
"trials in equity in regard to all matters adjudicated at law,
"where there has been surprise at the trial, or newly discovered
' evidence, since, the more recent and better decisions will jus"
tify no such proposition. The new trial is never granted in
" terms. There can be, in no such case, anything like another
'* trial at law. The case is effectually ended there. But where
' there was a distinct and decided fraud in the proceedings by
"which the judgment was obtained, as by putting in testimony
"which the party believed to be false; by giving no notice of
"the suit, or one calculated to mislead the defendant, and thus
deprive him of an opportunity to be heard in the trial at law;
or in any similar mode, making the trial at law fictitious or
'fallacious; and also where the defendant at law, through ac"cident
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';
" courts of equity will in their discretion grant relief by re"examining
the case upon its merits, and either enjoining the
"party from pursuing the judgment at law; or, where some
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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/m1/266/: accessed April 26, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .