The Texas Reports; Cases Adjudged in the Supreme Court ... Volume 15

The Texas Reports; Cases Adjudged in the Supreme Court ... Volume 15

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1857 edition. Excerpt: ... for a change of venue, and which was overruled by the Court, as being too late, was not made for delay, but becausehe was repeatedly warned after the cause was called for trial, by various persons of high respectability, that he could not obtain a fair and impartial trial of the cause in this county, and he be-v came convinced that such was the case." There are other facts stated in the aflidavit which we do not deem it necessary to notice. We think that a very strong case is presented for the interposition of the equitable powers of the Court. New trials are often granted on the sole ground that the rigid enforcement of a particular rule has caused injustice to a party. It is not denied in the present case, that if the District Judge had seen proper to grant the application, it would have been the exercise of a just discretion, but it is contended that his discretion cannot be controlled. It would be difficult to lay down any general rule for cases of this kind. We know of none less objectionable than this: when it is evident from all the facts attending a case, that by the ruling of the Court in the progress of a trial, a party was cut ofi' from trying his cause on the merits, or deprived' of any other right, though in strictness the ruling may have been correct, yet, if it is made to appear that the default of the party was not inexcusable, and he presents a prime facie case of merits, he ought to be allowed a rehearing. It is but seldom that a case controlled by this principle, would ever appear in an appellate tribunal, so clothed with the surrounding circumstances as to enable the Court to judge of the propriety of the action of the Court below, but it may sometimes be thus presented, and we deem the present one of more

Product details

  • Paperback | 214 pages
  • 189 x 246 x 11mm | 390g
  • United States
  • English
  • black & white illustrations
  • 1236899725
  • 9781236899729