Roller v. Wooldridge, 46 Tex. 485

Roller v. Wooldridge

46 Tex. 485 | Tex. | 1877

Roberts, Chief Justice.

The plaintiff in error obtained a judgment against Robert Adams, in the District Court, on the 15th day of October, 1866, for the sum of seven thousand dollars, in Hnited States currency, and for a lien on certain lands, (1599 acres,) with a stay of execution for four years, without bearing interest during that time. On the 2d day of July, 1868, the said Adams filed a petition, asking the court to set aside said judgment and grant him a new trial, on the grounds that the note upon which said judgment was rendered, was executed for and in consideration of the loan of that amount of Confederate treasury notes, and was payable in said currency, though not so expressed in the note, and that the attorneys, whom he employed to make his defense in the suit, in which said judgment was rendered, consented and agreed to said judgment without any authority from him to make any such agreement, and that he had never ratified the same as an agreement binding upon him.

In an amendment, he alleged further, that the attorney for the plaintiff was informed by bis counsel that they had no such authority; and that he took said judgment, .by their consent, upon the risk that the said agreement should be ratified by him; and that he had objected to it when first informed of it, and had never ratified it.

Roller filed general and special exceptions to this petition-; and also set up in his answer, facts in opposition to it.

Without detailing the matters that transpired previously, the court finally overruled the' exceptions, heard and determined the facts without a jury, set aside the judgment that had been rendered in favor of Roller, and granted a new trial in said cause. To all this, Roller excepted, as appears by bill of exceptions in the transcript.

*494The original cause having been redocketed, the defendant therein, the assignee of Adams, who had been made a party, filed an amended answer, which stated, in substance, that the note sued on was executed for the loan of Confederate States treasury notes, and was payable in said currency. Roller excepted to this answer as insufficient, and his exception was overruled. Upon the trial of the case, upon the issue presented by this answer, and the facts being proved by the evidence of Adams as therein alleged, a verdict was rendered for the defendant, and judgment rendered against Roller, that he take nothing by Ms suit, and pay the cost.

In the case of Mathews v. Rucker, it was decided by tins court that a contract was not void because it was payable in Confederate treasury notes, from which it would also follow , that such notes would be a valuable consideration upon which to sustain a contract. (41 Tex., 636; Thorington v. Smith, 8 Wall., 1.)

Therefore, the exceptions to the answer, as pleaded in tins new trial, should have been sustained. Rot being good as an entire defense to the action, to make it available as a partial defense, it should have stated further, the value of such treasury notes. But the proof made and the charge given, show that the case was decided wholly upon the illegality of the contract, because the consideration upon which it was based was the loan of Confederate treasury notes.

The mode of proceeding, in granting the new trial, was also erroneous. If Adams, in his petition, had stated good, equitable grounds for setting aside the judgment, wMch was a judgment in an ordinary action at law, the exceptions to it > for want of -equity should have been overruled, not for the purpose of granting a new trial, but that this suit in equity, as an original proceeding, for relief against a judgment at law, might be tried as any other suit, seeMng equitable relief. The rule here announced was definitely settled by this court, in the case of Taylor, Knapp & Co. v. Fore, 42 Tex., 256.

If, on the other hand, the equitable grounds set forth in *495the petition were not sufficient to set aside the judgment, upon its being excepted to and dismissed for want of equity, the judgment would be left standing, to be executed as a valid judgment.

In the case last cited, the authority of both Kent and Story is shown against the mode of proceeding adopted in this case, of having two trials, one to determine whether or not the-judgment shall be set aside, and the other, to retry the original suit after the judgment in it has been set aside. It is certainly not adapted to our mode of trials, wherein all of the material facts may have to he submitted to a jury, when demanded, whether the suit involves matters of law or equity.

The question remains to be considered, were there sufficient equitable grounds set out in the petition of Adams, to set aside the judgment that he complained of.

Any mere irregularity in the mode of procuring the judgment is not sufficient. A substantial injury must be shown. Hence it is said by Chief Justice Marshall, that “ although an attorney-at-law, merely as such, has, strictly speaking, no right to make a compromise, yet a court would be disinclined to disturb one, which was not so unreasonable in itself, as to be exclaimed'against by all, and to create an impression that the attorney’s judgment had been imposed on, or not fairly exercised; and the conduct of the party seeking to he relieved against the compromise of bis attorney, should have been perfectly blameless.” (Holker v. Parker, 7 Cranch., 436.)

It is evident that the main ground of injury complained of was, in having a judgment rendered against him on a note that was wholly illegal and void, because it was given for Confederate treasury notes. He does not allege, in the petition, that such notes, at the time the note was given and fell due, were, in the market, worthless, of so far below par as that the arrangement made by his counsel for him was injurious to his interests. Under the rule now enforced in this court, as well as in the Supreme Court of the United States, there is nothing stated in the petition on this subject that *496shows otherwise than that it was in fact greatly to his advantage.

The only other ground of injury that he could complain of was, that his counsel had consented, without authority, to give a lien upon land upon which he alleges that his homestead was situated. For, upon the other land, the judgment may have been a.lien, without it being stipulated in the judgment. To that extent he might, in equity, be entitled to have the judgment enjoined, without interfering with the other provisions of it.

Inasmuch as this case has not _ been brought and tried in the court below, upon rules of law and of procedure now held by this court to be correct, it is deemed proper to remand it, so that, if, in accordance with the rules here laid down, a substantial injury can be alleged, (in addition to the other equitable facts that have been alleged,) and shown by proof, the party complaining may have the opportunity of doing it, and obtain the appropriate remedy. (Taylor v. Fore, 42 Tex., 256.)

For the errors that have been pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.