Marsh v. Tiller , 279 S.W. 283 ( 1925 )

We think the trial court erred when he sustained the demurrer to appellants' petition and dismissed the suit. Among other things, it was alleged in said petitions (1) that, before the convening of the April, 1924, term of the district court of Panola county, appellee agreed and promised appellants she would take no action in her suit then pending against them in said court before the October, 1924, term thereof; (2) that they had a good defense against part of the recovery appellee obtained against them, in hat they had paid all but $2,793.27 of the amount due on the notes sued on; and (3) that they relied upon said agreement and promise of appellee, and were induced thereby to not appear and make said defense at said April term of said court. Assuming that he allegations were true, as the court should have done in passing on the demurrer, their effect was to show that appellants, without fault on their part, were induced by fraud practiced upon them by appellee to not appear at the April term of the court and present a defense they had to a part of the recovery then obtained against them. We think there is no doubt appellants, on proof of such facts, would have been entitled to have the judgment in question set aside, and to a trial of appellee's suit on its merits. 15 R.C.L. 765, and authorities there cited; 34 C.J. 470, 473, and authorities there cited; Huddleston v. Texas Pipe Line Co. (Tex.Civ.App.)230 S.W. 250; Jones v. Wootton (Tex.Com.App.) 228 S.W. 142; Wootton v. Jones (Tex.Civ.App.) 204 S.W. 237; Hester v. Baskin (Tex.Civ.App.)184 S.W. 726; Montague v. Craddock, 128 Ark. 59, 193 S.W. 268. At the place specified in 15 R.C.L. it is said:

"One of the most frequently recurring forms of fraud on the part of one litigant against the other, entitling the latter to relief in equity against the judgment finally entered, is the making of some agreement or representation for the purpose of preventing an appearance or defense in the original action, and reliance upon which has had the effect intended. * * * The deception may be by a false promise or compromise, by fraudulently inducing an adversary to withdraw his defense, by representations that the defendant need not appear and that the suit will be dismissed on certain conditions, or by procuring the absence of one's opponent by a fraudulent representation that the cause will not be tried till a following term, and thus procuring such opponent's defeat."

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