Thomson v. Bishop

29 Tex. 154 | Tex. | 1867

Moore, C. J.

The only objection made to the judgment in this case is, that the amendment of the sheriff’s return of the original citation was made in the district court after the petition ■ for writ of error was filed, the writ of error bond given, and the citation in error duly served to bring before this court for correction the first judgment rendered in this case by the district court. Service of the citation in error having been perfected, it is claimed the jurisdiction over the ease was transferred from the district court immediately to this court, and that said amendment was, therefore, made corean non judiee, and is absolutely void.

A similar view, with reference to the jurisdiction of the two courts, was urged, as the correct rule upon the subject, in the case of Miller v. Jasper, 10 Tex., 514, soon after the passage of the law requiring the assignment of errors in the district court before the withdrawal of the transcript of the record from that court. But it was held, and has since that time been uniformly held, that the assignment of errors might be filed in the district court at any time previous to the day upon which the transcript is required by law to be filed in this court. And it has been the uniform practice of the court to permit the incorporation in the record, and to act upon amendments and corrections made in the district court, at any time previous to the day on which the transcript is required by law to be filed in this court. In this case, when it was before the court on the former writ of error, the amendment now in question was included in the record, and its legal effect was passed upon and determined by the court, without -the slightest intimation that it was not properly in the transcript, and a legitimate part of the case before the court, which, of course, it could not have been, if made after the jurisdiction over the cause had passed from the district court.

When the first judgment of the district court was reversed by this court, and the cause remanded for further proceedings, it stood in that court as a pending case for action on the facts, as presented by its record, and the mandate of this court, showing a reversal of its former judgment. If, from this record, it appeared that the defendant was properly before the court, and failed to answer to the plaintiff’s petition, the latter was entitled to a judgment against him by default. And as it has been, as we have said, the uniform practice to regard the record as within the control of the district court until the day for filing the transcript in this court, the amendment of his return by the sheriff was properly treated as a legitimate part of the record before the court; and it appearing from it that the defendant .had failed to answer, although ample time for his doing so had elapsed after the mandate of this court was filed, showing the reversal of the original judgment, the court properly gave this judgment by default against him, from which the present writ of error is prosecuted.

The objection that notice was given to the attorney and not to the party himself cannot be held valid. The law authorizes notice, when necessary in the progress of a cause, to be served either on the party or his attorney of record. (Hart. Dig., Art. 750.) The right of the opposite party to serve the attorney of record with any such notice cannot be defeated by any mere private understanding between such attorney and his client, limiting the extent of his employment, or the purpose for which he appears in the case.

And if it did not appear from the sheriff’s amended return that the defendant below was properly before the district court when the judgment was entered against him, his previous appearance by attorney would have obviated this necessity. (Perry v. Rohde, 20 Tex., 729; Hill v. Faison, 27 Tex., 428.) The judgment is

Affirmed.