Hill v. Cunningham

25 Tex. 25 | Tex. | 1860

Bell, J.

In the case of Allcorn v. Butler, 9 Tex., 56, this court decided that an attorney who had contracted with his client for a specific fee, and who performed services in pursuance of the contract, either himself or by other competent persons, could not be deprived of his right to his fee, because his client saw fit to compromise his suit.

We are also of opinion that where the.attorney contracts with the client for a contingent fee,- to depend upon the result of the suit, if the client compromises the suit without consulting, the attorney, and without the attorney’s consent, then the attorney will be entitled to recover the whole amount of the fee in like manner as if the contingency had transpired, upon which the payment of the fee was made to depend. In such cases it would become the duty of the client to consult the attorney, and to obtain his consent to the compromise of the suit upon such definite agreement in relation to the attorney’s fee as the parties might think proper to make.

We only mean to announce this as a general rule. Oases might undoubtedly present themselves in which the attorney would not be permitted to control the suit, so as to prevent a compromise, or in other words, where the attorney would not be permitted to continue the litigation to the injury of the client. In the present case, it is clearly shown that the suit was compromised by Hill without the knowledge of his attorneys, and we think the court below held rightfully that the attorney was entitled to recover' the same fee which he would have been entitled to recover if the suit had proceeded to final judgment in favor of Warren J. Hill.

We are of opinion that the court below did not err in the rulings upon the motion to quash the attachment. The sheriff’s return was almost identical with the return in the case of Morgan v. Johnson, 15 Tex., 568, which was held to be a sufficient return. It was also proper for the court to allow the sheriff to amend his •return, so as to make it formal, or so as to state something additional to the statement of the return as originally made. Mr. Drake, in his work on Attachments, (sections 212, 213, 214 and 215,) says that as a general proposition every court may allow amendments of returns upon its process; and that applications to the court to permit such amendments to be made are always addressed to the sound discretion of the court. The officer cannot, as a matter of right, amend his return after it has been duly made. But in a proper case, the court will allow the return to be amended, and the amendment will relate back to the time when the original return was made; and the amendment and the original will, if necessary to a proper understanding of the doings of the officer, be considered as one return.

Upon a motion to quash an attachment for any defect, either in the writ, the bond or the return, every thing that appears upon the face of the papers upon which the questions arise, is admitted to be true; and none but a defect apparent upon the face of the papers can be reached by a motion to quash. Such objections to the proceedings as require the introduction of evidence to sustain them, cannot be shown upon a motion to quash. They can only be shown by plea. (See Wright v. Smith, 19 Tex., 297.) It follows, the return being sufficient on its face, that the Judge below did not err in refusing to hear evidence to impeach it, on a motion to quash.

There are no other questions in the case which we think it necessary to notice.

The judgment of the court below is affirmed.

Judgment affirmed.