Williams v. Huling

43 Tex. 113 | Tex. | 1875

Moore, Associate Justice.

It is unquestionably within the discretionary power of the court to alter, amend, or set aside its decrees and judgments during the term at which they are rendered. Although there might be circumstances under which this court would revise the exercise of this discretionary power, it is certainly only where it is manifest some injury or injustice has been done thereby. Evidently this record does not present such a case. If the court erred in setting aside its order dismissing the case, plaintiff in error is in no condition to complain. He had withdrawn his answer before the order of dismissal was made. He cannot be held to have been in and out of court at the same time. By the withdrawal of his answer he had virtually admitted the insufficiency or invalidity of his defense to the action. And as he did not seek to make any other, or demand that the plaintiff should proceed with the case, he certainly cannot complain of the action of the court in setting aside its order of dismissal, made at the instance of a new volunteer.

Aside, however, from this view of the matter, the application was amply sufficient to warrant the court in reinstating the case. Although the court may not be required to enforce agreements unless in writing and signed by the parties or their attorneys, still it by no means follows that the court commits any error of which a party to such agreement may complain, by the exercise of its discretionary powers, so as to prevent their obtaining an unfair advantage by the violation of such agreement.

The plaintiff in error, having appeared and filed an answer, could not by its withdrawal and the payment of the fees of his attorneys, avoid the legitimate results of his appearance, or claim that the case should proceed against him, as though he had been served by publication and had not appeared.

The amendment of the petition correcting the Christian name of the defendant in error was not of such a character as to require notice to be given to plaintiff in error. The original petition shows that she sued as the surviving wife of Thomas Huling, and as the representative of the community estate of herself and deceased husband. The correction of the mistake as to her name was a matter of form rather than of substance, and did not present a new cause of action. It would not have been necessary to have served plaintiff in error with notice of it, even though he had not been in court.

There being no statement of facts in the record, the validity or invalidity of the contract of which the defendant in error complains is not presented by the record in such manner as we are called upon to consider it.

There is no error in the judgment, and it is affirmed.

Affirmed.