Reed & Reed v. McKee

204 S.W. 717, 1918 Tex. App. LEXIS 687

Opinion

DEVY, J.

(after stating the facts as above).

[1,2] It is the rule that a party who is prevented from making a valid defense by misrepresentations or fraud or misconduct of the opposite party, unmixed with negligence or fault on his part, may have tho judgment vacated after the term of the court at which the judgment was rendered. Plummer v. Power, 29 Tex. 7; Burnley v.. Rice, 21 Tex. 171. And under this rule, in case the court may be authorized to vacate the judgment, it is the duty of the court to determine the right of the parties to a judgment on the pleadings and evidence, for the purpose of vacating the original judgment is- to allow the defendants to present their defense to the suit'. But here the court perpetually enjoined the judgment and put an end to any relief to the plaintiff on the original cause of action without determining the merits of the suit. And according to appellees’ own evidence, the appellants were entitled to a judgment in some amount for legal services.

It is believed the court erred in perpetually-enjoining the enforcement of the judgment sued on and in not determining the rights of the plaintiffs to a judgment under the evidence. It is suggested that the appellees’ petition should be amended so as to have the proper prayer for relief. The effect of the prayer as it stands is for perpetual injunction only, though the petition set up all the facts on which the appellees base their claim: for relief. ⅛

The judgment is reversed, and the cause remanded for a new trial.

Footnotes

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