Sales v. Darden , 1937 Tex. App. LEXIS 1394 ( 1937 )

The record in this case is before us without briefs; on this statement it is the practice of this court to dismiss the appeal for want of prosecution, Shoemaker v. Tedford, Tex. Civ. App. 74 S.W.2d 707, but appellee has filed a motion, asking that the judgment of the lower court be affirmed, which forces us to search the record for fundamental error, Brown v. Spector, Tex. Civ. App. 70 S.W.2d 478. On the face of the record, it appears that the appeal was prosecuted from a default judgment in favor of appellee against appellant, rendered on a petition wherein appellee prayed for judgment for the sum of $317, the balance due on an account for attorney's fees, and for $50 which he alleged he had agreed to pay his attorneys to file and prosecute this suit for him. The record negatives an obligation on the part of appellant to pay an attorney's fee for the prosecution of this suit. The judgment for attorney's fees in the sum of $50 is fundamentally erroneous. Houston Production Co. v. Taylor, Tex. Civ. App. 33 S.W.2d 202.

The judgment of the lower court is reformed by eliminating therefrom recovery for $50 as attorney's fees, and, as reformed, it is affirmed.