60 Tex. 312 | Tex. | 1883
We are of the opinion, under all the facts and circumstances of this case, as disclosed by the record now before us, that the district court did not err in entering a final judgment dismissing the proceeding at the costs of the relator.
Without going at length into the matter, it may be enough to say that the original and amended information was defective in not setting up in proper form sufficient matter to authorize the judgment sought.
It also appears that at some period of time before the proceedings now under consideration were instituted, the affairs of the corporation, by some means that are not known or understood from the pleadings, and for some purpose not disclosed in the information, were then in the hands of a receiver.
This person, though there is no distinct averment in the information that he was cited or served, entered his appearance, and he was the only person who did appear in answer to the prayer contained in the information.
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The charter and by-laws of the corporation constitute no part of the record, though purporting to be exhibits of it. In their absence it was out of the power of the district court, as it is also of this court, to determine upon what terms and conditions this charter was granted by the state.
Other matters which should have been pleaded with the fullness and particularity required in civil suits are set forth in general terms, and the legal conclusions of the pleader are in some instances substituted for the facts that should have been set up fully and certainly. State v. South P. R. R. Co., 24 Tex., 130; Bank of Columbia v. Att’y Gen’l, 3 Wend., 593.
A question is raised as to the right of a practicing attorney of the court, who is not representing any party to the record in the cause, on his own motion, to direct the attention of the court to the supposed defects in the information. Unquestionably, under such circumstances, the court could decline to hear him. But as such a person is entered on the roll of the attorneys of the court, and is an officer of the court (Strippelman v. Clark, 11 Tex., 298) and subject to its orders (R. S., arts. 1123-1125, 1212, 1345), it may hear him, if it sees fit to do so.
In any case where the court was in doubt whether it had the power to enter the judgment sought to be obtained, as where there was doubt as to the service, or where the subject matter was supposed to be not within its jurisdiction, or where the pleadings failed to show a cause of action, or to disclose sufficient matters of substance to authorize the court to enter the final judgment desired, it could, of its own motion, refuse to enter the judgment, and dismiss the suit or proceeding.
When the judge has doubts in his own mind as to the precise
In Beard v. Travers, 1 Ves. Sr., p. 313, Lord Hardwicke held that, in favor of an infant, an amicus curias may go further, and may make an application to the court, for the protection of the minor, and in that case entered the order applied for.
In Campbell v. Swasey, 12 Ind., 72, it is said: “The court may, and sometimes does, of its own motion, ask of counsel information upon a point of doubt.”
Under such circumstances the counsel, as an officer of the court, may advise the court. Of course he can do nothing further.
Our court has also recognized the right of an amicus curias to speak, and has held that while such volunteer action of counsel is permissible, yet the court, upon being so informed, could do only that which it could do without such action of counsel, and no more. Andrews v. Beck, 23 Tex., 455; Moseby v. Burrow, 52 Tex., 403; 1 Burrill, 67; 1 Toml., 75; 1 Bouv. Dic., 99; Taylor’s Law Gloss., 44; 8 Abbott’s Practice, 44; Sayles’ Prac., 2d ed., sec. 673, note 1.
We are of the opinion that the action of the court, under all the circumstances disclosed in the record before us, was correct.
The judgment is therefore affirmed.
Affirmed.
[Opinion delivered November 6, 1883.]