Porter v. Holt, 73 Tex. 447

73 Tex. 447 | Tex. | 1889

Gaines, Associate Justice.—

low by appellee to recover of appellants a strip of land, and involved the question of the true location of the boundary line between the A. B. King and the John Hensley surveys. The plaintiff claimed under the former and the appellees under the latter survey. After the institution of the suit on the 14th day of January, 1884, an agreement in writing was signed by the attorneys for the respective parties, and was filed among the papers in the cause the next day. The terms of the agreement were in substance that the plaintiff had title to the land embraced in the field notes of the King and that the defendants had title to that included within the lines of the Hensley patent, and that the only question was as to the true boundary line between the two surveys, and also that either party might introduce any written evidence without filing a notice, etc.

On the 23d of February, 1885, defendant Porter filed a motion to set aside so much of the agreement as limited the issues in the case to the question of boundary, alleging as the ground of the motion that it was entered into by his attorney without his express authority, and under a mistake as to the fact that he could show title to the portion of the land in controversy claimed by him by limitation. The motion was verified by oath of the attorney, but was overruled by the court, and the ruling is. assigned as error.

Agreements of counsel made during the progress of a cause ordinarily tend to the dispatch of business, and should be favored by the courts. The agreement should not be set aside at the instance of either party when the party invoking such action has obtained an advantage under it or when its withdrawal will place the opposite party in worse position than if it had never been made. But in this court such agreements have never been treated as binding contracts to be absolutely enforced, but as mere stipulations which may be set aside in the sound discretion of the court when such action may be taken without prejudice to either party. McClure v. Sheek's Heirs, 68 Texas, 426; Hancock v. Winans, 20 Texas, 320.

In this case there was no opposing affidavit showing that the plaintiff would havé been placed in worse position for prosecuting his cause than he would have been had no agreement been signed and filed; nor does it appear from the record that he would have been in any manner prejudiced by granting the motion. The cause was not tried until January, 1887—nearly two years after the motion was overruled. If it had appeared that the cause was ready for trial under the issues as limited by the agreement, and that a continuance would have been necessary to enable him to meet the new defense proposed to be set up, this would have been a sufficient reason for overruling the motion. The defendant’s offer to continue the case as upon his own application would not have relieved the difficulty. The plaintiff in the suit may be presumed to have an interest in a speedy determination of the case and a continuance may have been prejudicial to his rights. But since it appears that the cause was continued upon the limited issues made by the agreement it is apparent that its withdrawal would not have operated to his prejudice. The motion showed that the attorney through a mistake had agreed to yield up a substantial defense to the action, and we are of opinion that under the circumstances the court should have granted' the motion. The setting aside of such agreements is ordinarily in the discretion of the courts and their action will not as a general rule be revised. But where the agreement involves something more than a mere matter of practice and affects the substance of the cause of action or the character of the defense, and it appears that it has been entered into by counsel without a knowledge of the facts and that its withdrawal will not operate to the prejudice of either party, the motion to set aside ceases to be a matter of mere discretion and should be granted by the court. It follows that we are of opinion that appellants’ first assignment of error is well taken. From this it also follows that the court erred in striking out the pleas of the statute of limitations.

The other assignments relate to the charge of the court, and the errors there complained of, if errors they be, are such as are not likely to occur upon another trial and will not be considered.

It should be remarked, however, that the instruction complained of in the fourth assignment standing alone was calculated to mislead the jury, and it is doubtful if the other portions of the charge were sufficient to correct the error.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered April 9, 1889.