Chambers v. Hodges

• Decision Date: 31 December 1848
• Parties: THOMAS J. CHAMBERS v. HENRY HODGES
• Court: Texas Supreme Court

3 Tex. 517

THOMAS J. CHAMBERS

v.HENRY HODGES

Supreme Court of Texas.

December Term, 1848.

Error from Liberty County.

The jurisdiction of this court is exclusively appellate, but its revisory power is to be exerted, not over its own judgments, but over those of inferior jurisdiction.

When the judgment of this court is entered, its minutes authenticated as a record, and the term closed, the court has no further power over the decree for the purpose of revision or modification upon the merits. The rights therein adjudicated are irrevocably concluded and established. [6 Tex. 76;10 Tex. 127.]

This limitation upon the authority of the court does not prevent the correction of clerical errors or mistakes, or defects of form, or the addition of such clause as may be necessary to carry out the judgment of the court or to declare a judgment null and void which was rendered in a case not legally before the court. [9 Tex. 109;19 Tex. 321; 25 Tex. Sup. 261.]

The want of proof of notice to the defendant in error is cured by his voluntary appearance in this court.

Where there are no bills of exception, statements of facts nor error suggested or apparent on the record, it is the duty of the counsel for the appellee or defendant in error to suggest delay; and even should he omit to do so, the court will usually, under such circumstances, award the damages authorized by law in cases of frivolous appeal.

The transcript of the record in this case was filed with the clerk of the supreme court on the 11th January, 1844. On the 14th of April, 1847, the judgment of the court below was affirmed, with ten per cent. damages. At the next ensuing term of the court, on the 17th March, 1848, the plaintiff in error filed the following application for a rehearing:

This cause was brought up to the supreme court on writ of error from the district court of Liberty county. The first transcript was sent up by the clerk below to the June term of the supreme court for 1844, by mail; and the plaintiff in error, T. Jefferson Chambers, who now appears before this honorable court to apply for a review of the cause, had no opportunity to examine said transcript until it reached this court at that term, when he discovered in it great deficiencies, suggeste the diminution to the court, and applied for a writ of certi rari to complete it, and at the same term for a citation or scir facias to the defendant in error [14 Peters, 147; 1st United States Digest, p. 644 and § 409]; which last, as it appears from the minutes of the court, was awarded, but not the certiorari;still, the impression was made upon this applicant, and upon the clerk, as I am informed by him, and consequently upon the court also, as it is believed, that the certiorari issued, probably from the similarity of the appearance of the word “““citation” to “ certiorari,” as written in the minutes of the court. Thus the cause was continued until the last term of the court, when, no amended and complete transcript of the record having come up, the application for a certiorari was renewed by one of the attorneys employed by this applicant to attend to this cause, by a motion duly filed therein. It would not have been proper for this applicant to have filed any brief in the cause or to have made any assignment of errors, until the entire record was before the court; for the defendant in error might have replied in nullo est erratum in recordo, and so the case would have gone off on a partial hearing; so that all the appellant in error could properly do, was to insist upon his writ of certiorari to complete the record, which was done. Nevertheless, afterwards, at the same term of the court, the attorney of the defendant in error, intending to take an unfair advantage, as this applicant believes, seeking to surprise the plaintiff in error, and impose upon the court, caused (the plaintiff in error and his attorneys being temporarily absent from the court) an admission to be entered on the minutes of the court, that the defendant in error had been served with the citation, no return of which having yet been made into court; and so he took the case up, falsely representing it to be a delay case; and as such, it would seem, it was thus disposed of, with but little more than half the record before the court, and the renewed application for a certiorari, it is supposed, was wholly overlooked. And by these subtle devices, the attorney of the defendant in error procured an award of ten per cent. damages upon the judgment below, against this applicant, and this applicant had no notice, until a short time before the present term of this court, of its decision, so that it was impossible for him to apply for a review at the last term; he therefore now, at this term of the court, moves that a review of the cause be had, in order that justice may be rendered therein, which he would respectfully proceed to show has not been done.

For this purpose, this applicant would premise that this cause is still clearly under the control and in the breast of this honorable court; for, by a mistake of the clerk, the mandate of this court was dated on the 25th day of June, 1848, a day not yet arrived, and therefore the mandate is wholly inoperative, and, it is believed, a total nullity. And the action itself of the court must be viewed rather in the light of a simple award than a solemn judgment, as it was taken without a full hearing and consideration of the merits of the cause, and no formal written opinion was made out upon it and enrolled. It was in the nature of a judgment by default, in a cause not fairly and fully before the court, obtained, as it appears, by the misrepresentation and trickery of the opposite party, favored by a mistaken impression of the clerk of the court, as this applicant believes, and consequently of the court itself.

The transcript of the record below, upon which this cause was disposed of by this honorable court, was incomplete in a material respect, as will abundantly appear from the certified transcript now herewith presented, marked (B), which has been since obtained, though without the aid and authority of a writ of certiorari; and the new matter now presented forms a new, distinct, complete and legitimate cause for the determination of this court, whereon it may pronounce a formal, solemn and irrevocable judgment; whilst the award of the court as by default, at the last term, was based upon a fragment, the record of no suit whatever; and it is believed the action of the court thereon, then had, must be taken as an absolute nullity.

In order that the impression that this cause was brought up for purposes of delay may be completely effaced, this applicant prays that the part of the new transcript herewith presented, beginning with the petition of this applicant to the court below for a new trial, on page 10, and ending with the decision of the judge, P. C. Jack, on page 17, may be here read.

And in order not only to remove all impression that this cause was brought up for delay, but to show that it was one of peculiar enormity, in which great injustice was done, this applicant asks leave to represent a few facts connected with the case, which, although they may not appear conclusively from the records, throw light upon them, and receive corroboration from them. The brother of this applicant, mentioned in the petition just referred to, arrived in Texas towards the close of the year 1840, and being a lawyer of considerable experience and great discretion, he became the agent of this applicant, with full powers to transact his business and defend his suits and interests. It will be observed by the court that the name of G. S. Thomas disappears from the records as agent about this time, and does not reappear until the fall of 1842, when he comes forward to waive the incompetency of the judge and confess judgment. In the mean time he had abandoned that part of the country; ceased to be agent for attending to the suits of this applicant -- never having held any but the limited powers expressed in the letter attached to the petition just referred to in the record, and had fallen into habitual intoxication -- subject to frequent fits of mania a potu. In this shattered condition of his nature, the plaintiff in the suit below (as this applicant is informed and believes), fraudulently meditating an iniquitous advantage, induced him to go into court, waive the incompetency of the judge, who, as it appears from the record, was interested in the suit as counsel, and confess a judgment for an amount greater than said plaintiff was entitled to, by his own showing in his original petition, if fully allowed, and against which said Thomas had twice sworn, and knew there were just defenses. Prior to this confession of judgment, towards the close of the year 1841, the above mentioned brother and agent of this applicant departed this life and left his business defenseless. During this year, although (as it appears from the records) a competent judge, the Hon. Richard Morris, presided at the court, no effort was made by the plaintiff below to press the suit to a hearing. The above mentioned brother of the defendant then lived, and would have exposed the injustice of the demand. About this time, a formidable combination was entered into, as this applicant verily believes, co-extensive with his entire interest in this state, to crush and ruin him by multiplying litigation upon him, and in his absence insidiously propagating calumnies against him. This applicant was represented to have abandoned the country, and to be dead, whilst his correspondence was intercepted, and the whole of his property was lawlessly seized upon and thrown into a condition requiring it to be litigated. Many unjust suits were brought against him, and fraudulent proceedings were had, by which the home of this applicant was sold out and his property recklessly squandered; and the said Thomas, as it is charitably believed,...