31 Tex. 595 | Tex. | 1869
—The judgment rendered in this case was most obviously, in legal contemplation, nothing but an attempt to give a judgment upon confession, so far as the plaintiff in error is concerned. The suit was originally instituted against the maker and indorser of a note. There was an impetration and service of the writ, or citation, upon the maker of the note; but no citation was ever sued out and served upon the indorser. In consequence of a variance between the note offered in proof at the trial and the allegations in the petition, the plaintiff in the court below suffered a non-suit. Although an attorney of the court set up a defense for the indorser, which might be supposed to operate as an appearance for him, yet, when the non-suit was taken, it discharged the indorser and released the attorney from further duty in that cause, without the express assent of the client to renew the litigation. By the non-suit the plaintiff was compellable to commence his action de novo, unless the defendant in person gave his consent to the restoration and further prosecution of the original suit.
There is nothing in the relation of attorney and client which will authorize the attorney, when the obvious purpose of his employment has been accomplished, to reimpose the burden or obligation upon him from which he has been discharged. Hence, we conclude that the agree
The judgment of the court was, upon the reinstatement of the cause, rendered against the indorser without process, without suit, simply upon an agreement of the original attorneys to the record; and, for aught that appears, without his knowledge. Even if the steps had been taken with his knowledge they would have been obviously defective, because in violation of the policy of law. The judgment given was upon the agreement of the attorneys and in conformity with his stipulations, and this, too, after the jurisdiction of the court had been ousted by the non-suit.
The judgment was nothing else, then, but a judgment by confession on the original cause of action, according to the terms of the agreement. It was therefore a judgment of confession by the attorney not warranted by the statute, and in contravention of the policy of the law. Neither the party himself nor his attorney can confess judgment, unless the justness of the debt is sworn to. And when a judgment is confessed by attorney, the warrant of attorney must be filed. This error is sufficient to reverse the case.
But there is another errror assigned, which we regard as well taken, and is sufficient to authorize the dismissal of the case as against the indorser. It is the laches of, or failure to use due diligence by, the indorsee, to fix the liability of the indorser. The note sued on was executed on the 9th day of January, 1861, indorsed the same day, and was payable on or before the 27th day of June, 1861. The suit was instituted on the 25th day of November, 1861, and the citation was not issued against the maker until the 17th day of November, 1865, and has never issued against
The judgment of the court below is reversed as to the plaintiff in error, and ordered to be
Dismissed.
The defendant in error moved to reconsider.
—We have very carefully examined the grounds and the reasons presented by the counsel for the defendant in error for a rehearing, and re-examined the legal positions assumed in the opinion delivered in the case. After the most attentive consideration which we have been enabled to give them, we can find no sufficient cause for a reconsideration of the points involved in the case.
We think the attorneys for the defendant in error, in the view presented by them, ignore, or, rather, entirely overlook, the purpose and policy of the law in requiring suit
The authority of the cases relied upon by the attorneys is fully acknowledged by the court. But it must dissent from the justness of their application to the case. A liberal indulgence is extended to attorneys in practice in the courts of this country. Warrants of attorney are rarely demanded in the prosecution or defense of suits. This indulgence is granted upon the principle that, when a party has been cited to appear, he has a knowledge of the existence of the suit, and that he will be attentive -to his interest in the matter. And if an attorney represent him, the court must indulge the presumption that he knows it, and assents to it. But how can such presumption he indulged, when it appears to the court the party has no notice of the pendency of the action even? The truth is, the law cannot contemplate the existence of the relation of lawyer and client in
We cannot believe the law-givers ever intended that a party holding an indorsed note could fix the liability of the indorser by merely filing a petition in court and letting it there sleep for years, without ordering or obtaining a citation upon it, when the law permitted a citation to he issued, and still expect to hold the indorser responsible. Such an interpretation of the law cannot be consonant with the principles of justice. We therefore feel constrained to refuse the rehearing asked for.
Rehearing refused.