Merritt v. Clow , 2 Tex. 582 ( 1847 )

Mr. Justice Wheeler

delivered the opinion of the court, Mr. Justice Lipsoomb not sitting, having been of counsel (below.

Our inquiries will relate to:

1st. The proceedings upon the petition for a review and injunction; and

2d. The legality and validity of the judgment sought to be-enjoined.

1. The alleged absence of any authority in the attorney, Crosby, to represent the parties and to compromise and confess judgment against them, was relied on by the complainants as the foundation of their right to relief. The answer negatived this averment, and denied all the circumstances upon which their equity was founded. The injunction was dissolved,, therefore, of course.

But it was the privilege of the complainants, notwithstanding the dissolution of the injunction, to have conducted the cause to a hearing upon evidence touching the truth of the matters set forth in their petition (5 Stat. 1841, p. 83, sec. 3), and, upon making out their case by proof, the injunction must have been made perpetual. If, then, in point of fact, the merits of the case were with the complainants upon their application, their remedy was adequate and complete, had they chosen, to pursue it.

And the conclusion adopted by agreement of the parties,, that the dissolution of the injunction did, in effect and of necessity, dismiss the petition, is an assumption of fact and of doctrine wholly unwarranted. It had no such effect. On the contrary, the order of the court thereupon retaining the petition “ as an original bill,” and continuing it over for hearing, was regular and legal. Id. Of this the parties seem not. to have been ignorant; for it appears that, “ on motion, the-said bill was retained as an original bill,” and that said Clow was ordered to “ enter into bond to refund the money collected, as the law directs.” And the bond here contemplated was accordingly executed, conditioned to refund the money collected, “should the same be eventually decreed against him.”

The parties, therefore, must have been aware that the order-dissolving the injunction was but an interlocutory order, which could have no bearing upon the final disposition of the case. Their subsequent agreement could not change the fact; and it will scarcely be maintained that by it they either did; or could repeal the statute and create a law of their own for the case, paramount to the law of the land.

A writ of error had been sued out, and, as suggested at the bar, it may have been apprehended by the complainants that a final judgment dismissing the petition was necessary to give this court jurisdiction of the case on error. But whatever may have been the motive which induced the agreement, the complainants must be regarded as having voluntarily abandoned the case presented by their petition for a review and injunction, when they consented to its dismissal. If they saw fit to consider the dissolution of the injunction as having an effect which it manifestly had not, and as dismissing their petition, it was no fault of the court, whose duty it was only to declare the law upon a case properly presented. It was no concern or fault of the opposite party, who seems merely to-have acquiesced in the wishes of the complainants; but it was their own gratuitous and voluntary act; and as such, they cannot now take advantage of it as a ground for reversing the judgment; nor can it be regarded as error proper for revision and correction here.

The argument for the complainants has proceeded upon the supposition that this agreement of the parties truly represented the facts and judgment of the court; and that the court, did, in fact, peremptorily dismiss the petition of the complainants. "We cannot so regard it. We cannot recognize a right in parties litigant to attach to the action of the court, a consequence which the law forbids. Nor do we perceive-that the fact that upon this agreement of the parties, it appears to have been accordingly “ ordered by the court,” changes the legal aspect of the case, since the record discloses that this, agreement and entry did, in very truth, neither constitute nor consist with the judgment of the court. We feel constrained to regard it as unauthorized and nugatory. We cannot shut our eyes to the fact that the complainants were not prevented by any action of the court or opposite party from proceeding to establish by proof the truth of their complaint, and obtaining thereupon the relief they sought. Their failure to do so was not of compulsion, but of their own volition.

Had the action of the court been, as assumed in argument,, that of a peremptory judgment dismissing the cause without the acquiescence of the complainants, and without allowing them an opportunity of being heard upon the merits of their complaint, it would, we think, have been erroneous. The authority of a very learned court has, indeed, been cited in support of the doctrine, that where an attorney of the court has confessed a judgment against a party, who has not even been served with process, and without the authority or even knowledge of the party, the judgment so confessed is not only regular but conclusive. Denton v. Noyes, 6 J. R. 295. But a different doctrine has been maintained elsewhere — and we ¡think with much better reason — which denies that a party is concluded by the acts of an attorney, who assumes to act without authority (63 Ham. 518; id. 411), and which asserts that though “an authority will be presumed, when an attorney appears for a party against whom no writ has issued, yet if the defendant prove that he had no authority, his rights should not be prejudiced by the attorney’s acts” (6 Litt. 186), thus recognizing the right of a party, aggrieved by an unauthorized confession of judgment, to resist and set aside the judgment so confessed, by showing that the attorney had no authority. South. 817. See also the opinion of Van Ness, J., in Denton v. Noyes, 6 J. R. 306. It is unnecessary to enter upon a more particular examination of this question, since the benefit ■of this more equitable doctrine was not denied the complainants below. The privilege of showing the alleged want of authority’ in the attorney was not refused them, but the right to do so was abandoned by them.

2. The only question then is, as to the regularity and validity of the judgment enjoined and uow sought to be reversed. That judgment purports to be by consent and confession, upon agreement and compromise betwreen the plaintiff in that suit (the defendant in error) and the plaintiffs in error — •the latter appearing and acting by their “attorney and agent, Joshua J. Crosby, one of the attorneys of this court.” The attorney is represented as having acted both as an attorney at law of the court and the attorney in fact of the parties. The record of the judgment must be regarded as, at least, jprima facie evidence of the truth of its contents, and not having been. successfully controverted, must be taken as true. Crosby, then, must be regarded as the attorney in fact of the parties, authorized to make the compromise and confess the judgment in question. It matters not that his power of attorney does not appear in the record. Ve must presume the court had the proper evidence of bis authority. 6 Litt. 186. And, at the time of the rendition of this judgment, we are not aware of any law requiring an attorney confessing judgment for a party to file, of record, the evidence of his authority, though such is now the law. Acts of 1846, p. 393, sec. 116. Though *‘an attorney at law, merely as such, has no right, strictly speaking, to make a compromise for his client ” (7 Cranch, 452), yet an attorney in fact, duly authorized, may certainly do so. And though “ an attorney at law only represents the plaintiff or defendant in court, to do such acts as the plaintiff or defendant, if in court, might do himself” (2 Call. 498); and although “ he cannot bind a person not a party to the suit” (id.), yet a person not a party to a suit may make himself a party and may bind himself; and no one will question his power to ■create an attorney i/n fact competent to act for and bind him, within the scope of the authority delegated, and whose acts become, in contemplation of law, the acts of his principal. There was a suit pending against one of the plaintiffs in error, and it certainly was competent for the others, with the consent of parties, to come into court and become co-defendants and confess judgment, conjointly with the defendant in the ■case, to whom they sustained the relation of co-sureties and •co-obligors, with a subsisting liability respecting the matter in controversy. This they did by their attorney in ■fact; and this, their voluntary act, we have no authority to reverse.

The judgment thus rendered by confession, upon a deliberate agreement and compromise of the whole subject of controversy, must be regarded, we think, as a waiver of all previous errors, and supersedes the necessity of considering the various •questions presented in argument, as to the regularity and legality of the proceedings previous to its rendition. We are of opinion that the judgment be affirmed.