Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 68
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68 FIELrD & Co. v. FOWrLER. [Austin Term,
Opinion of the court.
WILLIE, CHIEF JUSTICE.- Our Revised Statutes provide that, when
a plaintiff in an action for the trial of the right of property appears,
and the defendant fails to appear, or neglects or refuses to join issue
under the direction of the court within the time prescribed for
pleading, the plaintiff shall have judgment by default as in other
cases. Art. 4385. The result of this provision is to give to an appearance
by the defendant all the effect of a plea in an ordinary
case in preventing a judgment by default until such time as he shall
refuse to join issue under the direction of the court.
How this appearance is to be effected is not prescribed, but when
the parties come into court, as in this case, and have an entry made
upon the minutes that they have appeared, it is sufficient to prevent
the consequences of a failure to appear on either side. The appearance
may be either in person or by attorney, and its effect continues
until it is withdrawn or set aside, or the defendant fails to join issue
when one is directed by the court.
In this case, after the appearance of both parties had been regularly
entered, and before any issue had been directed by the court,
a judgment by default was entered against the defendant. The only
reason given for this in the record is because the defendant's attorneys
had retired from the defense of the cause. It is not shown that
they withdrew the appearance, or that the court set it aside at their
request. It is contended, however, that by force of their abandonment,
the appearance which they had previously entered for their
clients was set aside, and availed the defendant no further. We
fail to see the force of this idea. The original appearance, as we
have seen, could have been made without the aid of an attorney, and
certainly its continuance depended in no wise upon the continued representation
of the defendant's interests by any particular attorney or
by any attorney at all. Moreover, the retirement of counsel from
the prosecution or defense of a cause does not set aside all steps, and
cancel all action previously taken by them in its management. Their
client is still entitled to the benefit of all pleadings and other papers,
or entries made by them.
It may be true that, with leave of the court, an attorney, so long
as he stlll represents one of the parties, though upon the eve of
abandoning a cause, may withdraw an appearance made by him or
pleas filed in its defense, and leave his client to the mercy of his
adversary. The court may, probably, in such case presume that he
had authority to that effect, and leave him and his client to settle the
damages, if any, resulting from his desertion. Henck v. Todhunter,
7 Harr. & J., 275.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/90/: accessed September 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .