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: 69
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1884.] FIELD & Co. v. FOWLER. 69
Opinion of the court.
But the intent to do so must clearly appear, and the record should
positively show that the pleadings or entries or other proceedings
were withdrawn, or they will still remain in the cause, and have the
same effect upon it as if the party for whom they had been filed
were still represented by an attorney. We think the abandonment
by the attorneys of the defense of the present suit merely left the
claimant without counsel to represent him, but did not make it the
proper subject of a judgment by default.
But if the judgment had been properly rendered originally it
should have been set aside upon the motion for that purpose filed
by the appellant. It was clearly shown that one of the attorneys
for the appellee had promised him on the day before the judgment
by default was entered, that he would notify him before taking
any action in the case. It also clearly appears from the facts recited
in the motion that this promise was made in view of the fact that
the counsel previously employed in the defense had signified their
determination not to appear in it any longer. They had been employed
by the claimants, who seem to have deserted the cause and
left their surety, the appellant, to provide as best he could for its defense.
The favor extended to Jackson was intended to give him an
opportunity to provide counsel in case they should be needed in the
further defense of the suit. It was not fulfilled by a notice given
to Jackson in so short a time before the judgment was taken that
he could not, after receiving the notice, reach the court-house in time
to prevent its being entered up. It may ba true that the attorney
taking the judgment did not know of the promise made by his associate
and partner, and hence the apparent breach of the agreement.
But the appellant had every reason to suppose that the agreement
would be made known to the other attorney, or if not, that the one
giving the assurance would see that it was fully complied with. lie
certainly cannot be made to suffer for the default of the party upon.
whose promise he relied, by reason of which he was led into a
seeming neglect of his cause. The facts set out in the motion are
verified by affidavit and are not contradicted in the same manner
by the appellee. Hence they must be treated as true; and so considering
them, we think they showed sufficient cause for setting aside
the judgment by default, and that the court erred in permitting it
to stand. For which error of the court the judgment is reversed
and the cause remanded.
REVERSED AND REMANDED.
[Opinion delivered June 24, 1884.]
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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/m1/91/: accessed March 28, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .