Cayce v. Powell
| Decision Date | 01 January 1858 |
| Citation | 20 Tex. 767 |
| Parties | HANNAH CAYCE v. SAMUEL G. POWELL. |
| Court | Texas Supreme Court |
The authority conferred upon a married woman to litigate in her own right, implies the capacity, on her part, to conduct the litigation as shall be most conducive to her own advantage; and this principle applies, where the wife is joined as a defendant with the husband, in a suit for necessaries for herself or family, etc.
It is a consequence of the capacity of the wife to sue and be sued in her own right, in certain cases, that she must be held to the use of the ordinary diligence of other suitors, where she is not specially exempted by law from the use of such diligence.
Where the wife is joined as a defendant with the husband in a suit which seeks to establish the liability of her separate property for necessaries for herself or family, etc., and is served with process, and answers by attorney, she cannot have an injunction to enjoin the judgment rendered against her in such suit, on the ground simply that her answer was withdrawn without her knowledge or authority, by agreement between her husband and the plaintiff in such suit, without allegation of actual fraud; nor can she excuse her failure to apply for an injunction within the time specified by law (Hart. Dig. art. 1599), by alleging ignorance that the judgment had been rendered.
It is not legal or technical fraud, but actual, positive fraud, in fact, which will authorize the annulling of a judgment.
Appeal from Brazoria. Tried below before Clinton Terry, Esq., appointed by the parties.
This suit was commenced on the 22d December, 1856, by Hannah Cayce against Samuel G. Powell and Thomas Cayce, the husband of the said Hannah, to enjoin a judgment recovered at the fall term, 1854, by said Powell against the said Hannah and the said Thomas, in a suit on a note of the said Thomas, and in which said Powell alleged that the said note was given for necessaries for the said Hannah and the family of said Thomas, generally. It was admitted that both the said Hannah and the said Thomas had been duly served with process and had answered by attorney, in said suit; but this plaintiff alleged that at the second term of the court, which was the spring term, 1855, the said Thomas had, by agreement with said Powell's attorney, withdrawn the pleas and answer of the defendants in said suit, and let judgment go for the amount claimed, with a stay of execution for one and two years; of which judgment, this plaintiff alleged she had no notice until a few weeks previous to the filing of this petition, when the sheriff, for the first time, called upon her with an execution. There was no pretence that there had been any actual fraud in the case; but the suit proceeded upon the theory that if the husband and her attorney had not been authorized by the wife, to let judgment go as alleged, it was, in law, a fraud upon her rights.
Defendant Powell demurred and answered. The demurrer was overruled; verdict and judgment for the defendant. This court having decided that there was no foundation for the action, upon the allegations of the petition, it is unnecessary to state the evidence.
A. P. McCormick, for appellant. I. Again; the 3d point in the instructions complained of is, “that if Mr. Cayce and the attorney of Mrs. Cayce acted in good faith towards Mrs. Cayce, the jury will find for defendant.” This is the perishing point of the whole charge, and here the case is made to hinge. By it the jury are narrowed down to the question of the good or bad faith of Mr. Cayce and Mrs. Cayce's attorney. But it is respectfully insisted, that if the action of Mr. Cayce and said attorney was without the pale of their authority, and from their unauthorized act sprung up this judgment against Mrs. Cayce, it operated a serious fraud upon her rights, and is such a fraud as she is entitled to relief against, no matter what were the motives of the parties, so soon and whenever it is discovered by her.
II. The 4th assignment of errors is: “The district court erred in refusing instructions asked by plaintiff's attorney.” The instruction asked was in substance, that a general attorney to attend to a suit is not authorized to compromise said suit, without special authority. It is believed that this has not been doubted in this country since the decision of Holker and others v. Parker, in 7 Cranch, 436 (see particularly pp. 452 and 453), where Chief Justice Marshall carries the doctrine so far as to set aside a judgment rendered on an award, where it was shown that the award was founded on a compromise made by the attorneys. And the charge asked was pertinent to the case, as it...
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...Tex. 417; Byars v. Justin, 2 Tex.App. Civ. Cas. (Willson) 603; Nevins v. McKee, 61 Tex. 412; Harn v. Phelps, 65 Tex. 592; Cayce v. Powell, 20 Tex. 767, 73 Am. Dec. 211; Rodriguez v. Lee, 26 Tex. 32; Hutchins Lockett, 39 Tex. 165; Roller v. Wooldridge, 46 Tex. 485; Coffee v. Ball & Co. 49 Te......
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