63 Tex. 44 | Tex. | 1885
The appellant claims that the judgment rendered against him in Bexar county, in favor of Leon & H. Blum, was absolutely void, and liable to collateral attack; and that, in attempting to enforce it by a levy upon the property of appellant, the plaintiffs were guilty of a trespass.
Upon this latter ground he claims that the county of Washington had jurisdiction of the cause, the levy having been made in that county.
It is contended that the judgment is void, because no citation was issued in the suit wherein it was obtained; because Mikeska had no notice of the pendency of that suit, and because he did not employ the attorney who confessed the judgment, or authorize him to appear for him in the cause. c
In order to render a judgment of the district court of Bexar county liable to impeachment in a collateral action for want of service upon a defendant or notice to him, it is necessary that the want of service or notice should appear upon the face of the proceedings wherein the judgment was rendered.
It is a familiar principle that an attorney properly authorized may waive service for his principal, and it is an express provision of our Revised Statutes that a defendant may appear by an attorney without process and confess judgment in favor of a creditor. It is necessary, in such cases, that the attorney be authorized in writing to make the confession, and that his authority be filed in the cause. R. S., 1347, 1348, 1349.
On the face of the proceedings in the Bexar district court, it seems that all the requisites prescribed by the statute to make the judgment by confession legal were complied with, unless the agreement between L. & H. Blum and Mikeska, under which the attorney acted, was of such a character as would render it void, and confer no authority upon the attorney who made the confession.
The appellant attacks the agreement mainly upon the grounds that it was procured by fraud; that it authorized suit before the claims referred to in it were due; and that it was not sufficient to authorize the attorney who made the confession to act for the appellant in that behalf.
(1) A judgment obtained by fraud is not for that reason liable to a collateral attack. It is voidable, not void, and a direct proceed
(2) There is nothing to prevent parties to a contract from making such other agreements in writing, contemporary with its execution, as they may choose, although such agreement may vary the terms of the contract. The agreement will be binding between the parties, and may be enforced, although it make the paper referred to in it more or less onerous upon one of the parties than it would appear to be upon the face of the paper itself. As to third parties, the rule would be different if they had no notice of the separate agreement. We see no objection, therefore, to the parties in this case making a separate agreement, binding upon them, to the effect that the claims sued on in Bexar county should mature at an earlier date than was provided for in the claims themselves, and, even if the suit was premature, that was matter for defense to the action, and not cause for collateral impeachment of the judgment rendered upon them.
(3) It is too clear for argument that a party may appoint an attorney and provide that, in case he does not act, another person, even his creditor in the particular transaction, may select an attorney to act in his place. This is the usual and almost universal practice in cases of deeds of trust, and the acts of the substituted attorney performed in conformity with the power conferred on him in the deed are always upheld.
The agreement was not, therefore, void, merely for the reason that it provided in the alternative for a confession of judgment to be made by an attorney to be selected by the creditors of Mikeslca. Even if irregular or illegal, this was matter of defense to the original suit, or, at most, matter to be set up in a direct proceeding to annul the judgment.
The authority exercised by the attorney was capable of ratification by Mikeska, and hence was not void. To prevent acquiescence on his part from amounting to ratification, he should have brought to the knowledge of the parties, claiming a right under the power, his disaffirmance of the acts of the attorney, in such a proceeding as would have allowed them an opportunity to establish its validity if possible.
The face of the proceedings did not show that the power of attorney was absolutely void, and that service had not been properly and legally waived by the appellant, and he could not in this collateral manner have the validity of the power tried and tested by extra
Affirmed.
[Opinion delivered January 13, 1885.]