Schiesser v. State , 1975 Tex. App. LEXIS 3400 ( 1975 )

NYE, Chief Justice

(concurring).

I disagree with the majority’s holding that the appellant did not have notice of the order of dismissal and the reinstatement of the case. The record shows that the motion to dismiss, the order of dismissal, the motion to set aside the dismissal, and the orders reinstating the case were all a part of the official record of the case. The attorney for the appellant had access to all of the pleadings of the case prior to trial. Even the court’s docket sheet “noted” that such prior action had taken place. The attorney had constructive, if not actual, notice of all of such prior trial proceedings at the time he announced “ready for trial” on the merits of the case. His appearance and participation in the trial amounted to a waiver of his right to object to the preliminary matters of record that took place prior to the actual trial.

Any party to a suit may appear by his attorney and his appearance is binding on the litigant. The appellant does not claim here on appeal that her attorney did not have authority to appear therein and represent her. The courts of Texas will not set aside a judgment because of the negligence or mistakes of his attorney who participated in a trial. Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App—Corpus Christi 1965, writ ref’d n.r.e.), reh. denied, 385 U.S. 964, 87 S.Ct. 389, 17 L.Ed.2d 309; 34 Tex. Jur.2d § 213; 25 Tex.Jur.2d §§ 2-6; and cases cited therein. In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.). See also Metts v. Waits, 286 S.W. 923 (Tex.Civ.App.—Austin 1926, no writ); Maeding v. Maeding, 155 S.W.2d 991 (Tex.Civ.App.—Galveston 1941, no writ).

The pleadings, the orders and the docket sheet were all a part of the official record in this case. All of the matters that the appellant now complains of were of record and were officially before him when he announced ready for trial. His complaint after trial comes too late. He should have made his objection to such preliminary matters before the trial began.

It is an attorney’s obligation to know what appears in the pleadings on file and in the official record of his case. Such knowledge of the attorney is imputed to his client. There was no action taken by the appellee or the trial judge that prejudiced any of the rights of the appellant. She had her “day in court”. In absence of fraud, a party is as fully concluded by the acts of the attorney as if he were acting for himself. Fonseca v. County of Hidalgo, 527 S.W.2d 474 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.).

I agree that the judgment of the trial court should be Affirmed.