Case No. 1604 | Tex. | Nov 18, 1884
That the court below had control of the judgment until the close of the term at which it was rendered has been so firmly settled as to admit of no controversy. .But the plaintiff in error claims that as he had filed his petition and bond for writ of error before the defendants in error had filed their motion to amend and correct the judgment, that the latter came too late. That proposition is predicated upon the idea that the jurisdiction of the supreme court having attached, the court below had no power to make the order amendatory of the judgment. It is now settled that notwithstanding an appeal may have been perfected, that the court below has control over its judgments until the term is closed, and that it has full power to vacate or amend the same until the adjournment of the term. Garza v. Baker, 58 Tex., 483" court="Tex." date_filed="1883-02-02" href="https://app.midpage.ai/document/garza-v-baker-4893956?utm_source=webapp" opinion_id="4893956">58 Tex., 483.
The same principle, of course, is equally applicable to a writ of error as to an appeal. Therefore, it must be considered that the court below was authorized to make any proper or appropriate order amendatory of the judgment.
But the question still remains as to whether the record, as now presented, shows authority in Dibble to waive process and confess judgment for the plaintiff in error.
The statute provides that “ when the judgment is confessed by attorney, the power of attorney shall be filed, and a recital of the contents of the same be made in the judgment.” R S., art. 1348.
While the written instrument authorizing the defendants in error to designate some attorney to confess judgment for the plaintiff in error is on file in the cause and is in part recited in the judgment, jet there was no writing on file at the time the judgment was rendered, which would have authorized Dibble to act for plaintiff in
It is claimed that the instrument, which in part forms the basis of this suit, is invalid 1 eciuse it is against public policy. That assertion is not sustained by the record. True, it is one of the most remarkable and far reaching instruments that we have ever been called upon to examine, still there is nothing in it violative of any policy appertaining to the public. And there is nothing in the record outside of the character of the instrument itself, which in the remotest degree would indicate a want of capacity to contract. And while it seems to have been the spirit and intent of the instrument to place it within the power of the defendants in error to destroy the business and financially ruin plaintiff in error at will, and with perfect immunity against being required to respond therefor in damages, yet the law does not inhibit him from thus placing himself within the power of others, if he deems it proper to do so.
However, where a party who has exacted and secured such an advantage, seeks through the aid of the courts to secure its fruits, he will be held to a strict compliance with the terms of the instrument. Such a contract does not commend itself to the favorable consideration of the courts, and the party will not be aided in its enforcement by favorable intendment or presumption. For no enlightened court will ever encourage by favorable intendment or presumption forfeiture or confiscation of private property.
In our opinion it was essential to the validity of the judgment that Dibble should, at the time it was confessed, have been acting under a written designation, which, in conjunction with the instrument sued on, would have authorized him to waive the process and confess the judgment. Ho such written designation was on file at the time the judgment was rendered, and that which was subsequently filed and made part of the record by order of the court does not cure the defect. From anything appearing to the contrary, that writing may have been and perhaps was made and signed long after the rendition of the judgment.
There is nothing in the character of the instrument, or in the manner in which it was sought to be made available, which would entitle the proceeding to any favorable intendment or presumption in its support.
Our conclusion is that the judgment ought to be reversed and the cause remanded. Reversed and remanded.