Williams v. Nolan

58 Tex. 708 | Tex. | 1883

Station, Associate Justice.

This action is brought to correct a judgment rendered in the district court for Fort Bend county, at the November term, 1880, in a suit in which appellants were the plaintiffs, and the appellee and her children were defendants; its object was to vacate so much of that judgment as gave to the appellee a life estate in two hundred acres of land.

The correction sought is not that of a clerical omission or mistake apparent by the record of the case, which may be corrected upon notice to the adverse party by the court, so as to make the record what the court intended it should be, but it is an application to have a part of the judgment which the court did intend to render and have placed in the minutes of the court, as was done, vacated after the term.

The petition must be treated as an application for a re-examination of the case, at a term subsequent to that at which the judgment was rendered, for the purpose of vacating it.

That the district courts have power to re-examine a cause upon its merits, and to vacate its former judgment, where it is made to appear that such judgment was obtained by fraud, accident or mistake, without fault upon the part of the person seeking relief, has often been decided.

It is not alleged that there was any fraud, misrepresentation or wrong upon the part of appellees which induced the rendition of the judgment, a part only of which is sought to be vacated, and to the vacation of the residue of which the appellants in their petition object.

To authorize a re-examination of the case, it is certainly necessary that all the parties to that suit should be parties to this; yet the children of Mrs. Nolan, who were parties to that suit, are not made parties to this. The legitimate inference from the petition is, that while the appellants in the former suit, as in this, claimed the land in controversy as the separate property of their mother, who was the first wife of W. G. Nolan, the defendants claimed that the land was the community property of W. G. Nolan and his first wife, if not community property of him and his second wife, Mrs. Kate Nolan, who was the mother by him of the other defendants in the former suit.

Although the homestead for life, by the former judgment, was set apart to Mrs. Nolan alone, and although that judgment may have been, as it is alleged, in this regard, made under an unauthorized agreement between the attorney for the appellants and all the defendants in that suit, yet if, through that agreement, the children of Mrs. Nolan surrendered any right which they had or honestly believed that they had, and this for the benefit of their mother, then with reference to the necessity to make the children of Mrs. Nolan parties defendant in this action, it would be unimportant whether the attorney for the appellants had authority to make the agreement upon which the judgment was based or not; for the appellants cannot be heard to ask action upon the judgment based upon that agreement, unless all of the parties to the judgment entered upon it are before the court.

If any part of that judgment should be set aside, the appellants could not be heard to claim its benefits while repudiating a part of it, when most probably the agreement influenced the ivhole judgment. If the judgment ought to be vacated in any part for want of authority in the attorney of appellants to make the agreement upon which it was based, it would be but just that all the parties should be remitted to their rights as they stood before the agreement was made, and to do this it would be necessary that all parties to'the judgment should be before the court; and as they were not, this would have been a sufficient reason for sustaining the demurrer, and especially so, where, as in this case, parties are seeking to hold on to so much of the judgment as is favorable to them, and are seeking to disregard all of it which they deem unfavorable to them. ...

The appellants are asking equitable relief, and to entitle them to it they should not only have averred a want of authority in their attorney to make the agreement, but they should have set out fully what the agreement was, so that the court could have seen whether or not they had been injured by it, considered with reference to its bearing upon the whole case; for as was said in the case of Roller v. Wooldridge, 46 Tex., 495, “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 one 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 be relieved against the compromise of his attorney should have been perfectly blameless.’” Walker v. Parker, 7 Cranch, 436.

It is not every judgment rendered upon unauthorized agreements or compromises of attorneys that a court of equity will set aside; it will only be done where injury has resulted therefrom to the party complaining. Wieland v. White, 109 Mass., 394; Potter v. Parsons, 14 Iowa, 288; Bonney v. Morrill, 57 Me., 374; Jones v. Williamson, 5 Coldwell, 371. In the absence of a clear and full statement of the entire agreement in all its parts and bearings, a court of equity would not undertake to give relief; for in so attempting injustice might be done.

It is not denied that the attorney who made the agreement complained of was the attorney of the appellants in the former suit; and while there are averments in the petition which deny his authority to make it, yet allegations are also found there which boar strong evidence that the attorney was authorized to make the agreement, or at least that such conversation had passed between the attorney and the appellants as authorized him to believe that he was so authorized.

The petition contains the following averments: “ Plaintiffs would show that they did propose that if said defendant would pay all the taxes on said land and keep the place in repair, that she might live there and use such land, not to exceed two hundred acres; but these plaintiffs did not propose and never consented to give her any right there, unless she lived there and kept the place in repair and paid the taxes thereon.” “ That they had told their attorney that it was not their wish to turn the defendant out, but they were willing that she should stay upon the place and use enough of the land to render her comfortable, if the defendant would pay the taxes on said land and keep it in repair.” After this,'the petition goes on to deny that they authorized* their attorney to embody in the judgment that was entered that which they had practically expressed a willingness to grant. Peru Steel Co. v. Whipple Manuf. Co., 109 Mass., 466.

[Opinion delivered February 20, 1883.]

If there was a failure of the tenant for life to prevent waste of the property, or to pay the taxes thereon, the law, without the judgment so declaring, would impose that duty upon the holder of the life estate, and especially so if the agreement under which the life estate was created so provided.

In this case it is unnecessary for us to enter into an investigation of the controverted question as to how far a compromise made in good faith by an attorney duly employed will be sustained, where the act of the opposite party is fair and untainted with fraud, misrepresentation or mutual mistake, and the transaction itself is reasonable.

Every reasonable presumption is to be indulged in favor of a settlement made by an attorney duly employed, and especially so after a court has recognized such an agreement and entered a solemn judgment on it. There are other matters in the record which might be considered, but in view of those already referred to it is not deemed necessary to do so, for we are of the opinion that, for the reasons indicated, the court did not err in the disposition which was made of the case.

The judgment is affirmed.

Aefiemed.