Foster v. Martin

20 Tex. 118

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

The motion to set aside the judgment was in the nature of a motion for a new trial. To entitle the defendant to have the judgment set aside, as a matter of legal right, he should have brought his application substantially within the rules governing the granting of new trials. He should have made his application within the time prescribed, or shown some sufficient excuse for his neglect. His application should have shown a sufficient excuse for his failure to appear and make his defence to the action within the time allowed for pleading, and also that he had a meritorious defence. The application is deficient in all these particulars. It was not filed in time; (Hart. Dig. Art. 766;) it states no sufficient excuse for his failure to make his defence; (Wright v. Thomas, 6 Tex. R. 420;) nor does it disclose merits. It is not enough to say that the defendant has a good legal defence. That is a matter to be judged of by the Court; and it should appear in what the defence consists, in order that the Court may judge of its sufficiency. The application is to be determined upon equitable principles, and the Court may well refuse it when asked to let in a mere legal defence, not founded in equity and justice. (13 Tex. R. 275.) There is no error in the judgment, and it is affirmed.

Judgment affirmed.