Houston v. Jennings , 12 Tex. 487 ( 1854 )

Hemphill, Ch. J.

This petition was filed on the loth June, 1853, and the plaintiff prays that a judgment dismissing a suit between the same parties for want of prosecution rendered on the 11th December, 1851, be set aside, and that the cause be reinstated on the docket for trial. The grounds of this motion, or application, are, that the Court had not power to dismiss the cause, the record not showing that the plaintiff or his attorney was called or failed to appear; because the defendant, neither in person or by attorney, appeared at the time of said dismissal, nor did either move or ask the Court to dismiss the same ; and because the plaintiff was in Court by his petition, and the cause, if disposed of, should have been submitted to a jury, and a verdict rendered in favor of plaintiff or defendant; and because the defendant not appearing on 'the calling of the cause for trial, the same should have been continued ; and because it does not appear that the said cause was regularly called in its due order for trial.

A glance at these grounds will show that they furnish no legal basis on which to set aside the judgment of dismissal. The entry would have been more formal and regular had it in so many terms declared that the plaintiff did not appear in person or by attorney ; but the want of this formality is not sufficient to invalidate the judgment. That it was not prosecuted is a fact declared and settled by the judgment itself; and as all reasonable presumptions are in favor of the correctness of the judgment, it must be presumed that the plaintiff did not appear in person or by attorney, or if he did that he failed and refused to prosecute the suit. And the presumption is, also, that the cause was called in its due order on the docket, and the fact of its not being stated in the entry, that it was so called, is no evidence to the contrary.

Whether the defendant did or did not appear, or whether he moved for the dismissal of the suit or not, is immaterial. Such judgment rests for its foundation, not in the acts of the defendant, but on those of the plaintiff, or rather on his want of action. When a cause is regularly called, the District Court is bound (by implication at least) under th§ statute, to dismiss it for' the want of prosecution, having no authority to suffer a continuance unless it be allowed by operation of law, or by consent of parties or for a sufficient cause supported by affidavit. (Art. 815.)

But, if there had been no express provision of statute, regulating continuances, the Court is not bound to perpetuate a case on the docket by continuances, simply because the parties do not appear either for the prosecution or the defence. The mere non-appearance of the plaintiff is no good ground why he should have further day to prosecute his action. The cause had been continued by consent at the Fall Term in 1848, and at the Spring Term in 1849. No entry appears in the cause at the Fall Term in 1849. In the Spring Term, 1850, James M. Ardrey, the attorney of the plaintiff’, announced his withdrawal from the case and the cause was continued by the plaintiff. At the Fall Term, 1850, the continuance was entered as on affidavit of the plaintiff. At the succeeding Term no entry was made, and at the Fall Term, 1851, the cause was dismissed for the want of prosecution. These entries shew no great degree of diligence on the part of the plaintiff". The continuances, when not made by consent, were allowed at his instance and for his benefit, and leave him without any even seeming ground of complaint, against the action of the Court, as being marked with rigor or a severe application of the principles of law under the circumstances of the case.

But the plaintiff contends and charges as a ground for relief against the judgment, that without any fault on his part, and without any notice, his attorney on whom he had solely relied, abandoned the case and deliberately caused the plaintiff’s petition to be dismissed; that he was not notified of the withdrawal of said attorney, nor of the dismissal of the suit until the latter part of April, 1853 ; that he has been representing the State of Texas in the Senate of the United States ever since the institution of the suit, and since its dismissal has been detained for a great portion of the time in Washington city, attending to his official duties, and believes he was in that city on the day on which the suit was dismissed, and relying on his attorney as trusty and efficient, he had not and never has been able to give the suit his individual presence and attention, which facts the plaintiff alleges as showing the reasons why he had not at an earlier period ascertained the dismissal of the suit, the withdrawal of his counsel, and why he had not employed other counsel to represent him.

There is no doubt that the public duties of the plaintiff are such as to absorb, in a great degree, his attention ; and this fact should have its due weight on the course of procedure in causes in which he is concerned. It prohibits him, in effect, from giving (at least but partially) individual attention to his suits, and requires him, at a great distance from the locality of the actions, to neglect as it were.his private interests and devote himself to the public service.

As expressive of the sense of governments generally in this confederacy, in relation to the immunities under which persons serving in a legislative capacity should be protected, it is declared in their Constitutions, that during their attendance and in going and returning, they shall be exempted from arrest, except in cases of treason, felony or breach of the peace. This is expressly provided for by the Constitution of the United States, and at its adoption was a privilege of the utmost importance, as the liability to arrest for debt was then general, perhaps universal, throughout the States. The effect of this provision is not direct, on suits brought by the public officer; and a reference is made to it only as showing that as a recognized rule of public policy, the officer should not be diverted from his public duties, nor should his attention be distracted, nor the public interests under his control be put to hazard by subjecting him to detention or a vexatious and oppressive course of litigation at the suits and caprices of private individuals.

To what extent the ordinary rules in the administration of justice might be relaxed to shield a public officer from oppression, even where for his own protection he is forced to bring suit, need not be particularized in the present case. It would seem but reasonable that if, during his necessary absence on legislative duties, his attorney should withdraw from a cause and thus expose it to be dismissed for the want of prosecution, he should have until the next Term or a reasonable time to show grounds why such judgment should be set aside, and especially if the attorney were insolvent or the recourse against him an inadequate remedy. But the circumstances of this case are not such as to justify the interposition of the Court against its own judgment. The suit was not dismissed at the Term in which the attorney withdrew from the cause, nor was it dismissed until the third Term, or about eighteen months afterwards. Nor was it until eighteen months after the dismissal of the suit, and three years subsequent to the withdrawal of the attorney, that this application was made to have said judgment of dismissal set aside upon the ground, among others, that the attorney had withdrawn from the suit. The fact of the withdrawal was entered of record, and was one of which the plaintiff might have been apprised before the suit was dismissed, had he given any such attention as is expected and required of every man in relation to his own affairs, and especially where his acts or his want of action are to operate on the rights of others. Whatever consideration may and should be given to the fact that during the greater portion of the periods at which the Courts are holden the plaintiff must necessarily be absent, yet this will not excuse such laches as appears in this case, nor can the rights of the defendant be affected nor judgment in his favor be impaired on grounds which can be successful only where the party claiming the benefit of them, has shown a reasonable degree of diligence in the prosecution of his rights.

Judgment affirmed.