Chambers v. Hodges

• Citation: 23 Tex. 104
• Parties: THOMAS J. CHAMBERS v. JAMES HODGES, ADMINISTRATOR.
• Decision Date: 01 January 1859
• Court: Supreme Court of Texas

23 Tex. 104

THOMAS J. CHAMBERS

v.JAMES HODGES, ADMINISTRATOR.

Supreme Court of Texas.

1859.

The abuse, by an agent, of a general power to represent his principal in a pending suit, by an unauthorized confession of judgment, renders him responsible to his principal for such abuse of trust, but his acts are binding on the latter, so far as they affect the rights of third persons. 2 Tex. 582.

A petition for an injunction against a judgment, and for a new trial of the case in which it was rendered, presented to a district judge for his action, in vacation, and on which he indorsed his refusal to act (having been originally counsel in the cause), on a writ of error to revise the judgment, constitutes no part of the record, and cannot be noticed by the court, even if incorporated in the transcript.

After the rendition of judgment in this court, a suggestion of diminution of the record, cannot be heard, after the expiration of the term, as a ground for vacating the judgment.

An application for rehearing in this court comes too late after the expiration of the term at which judgment is rendered; and an application thus made, too late, suspended for a hearing, and finally refused, does not suspend or affect the judgment, or prevent the running of the statute of limitations (O. & W. Dig. C. S. art. 1347, p. 510), requiring writs of error to judgments and decrees to be granted within two years from the time such judgment or decree shall have been made final.

The affirmance by this court, of a void judgment, imparts to it no validity; and it may be vacated, and its execution enjoined, at any time. 9 Tex. 313.

The constitution and laws of the republic of Texas, in force on the 15th November, 1842, contained no provision forbidding a judge of the district court to sit in any case in which he had been of counsel. The constitution of the state contains such a prohibition (art. 4, sec. 14), and it seems, that under the laws in force in 1842, the fact of having been of counsel, did not incapacitate the judge to sit, to entertain a confession of judgment in the case.

The statute in force in November, 1842, recognized interest as a disqualification of the district judge to sit in judgment in the case, and has always been deemed a disqualification.

A waiver by the parties to a suit, of an exception to the presiding judge who was disqualified to sit on account of interest, cannot give jurisdiction, or capacitate a person, legally incompetent, to sit in the case, and a judgment thus rendered, though by confession, is void. The consent of parties cannot remove his incapacity, or restore his competency against the prohibitions of the law; which was designated, not merely for a protection of the party to the suit, but for the general interests of justice. Post, 455; 26 Tex. 583.

ERROR from Liberty. Tried below before the Hon. C. W. Buckley.

This suit was instituted on the 29th of January, 1851, by the appellant, against Henry Hodges, the appellees' intestate, to enjoin and vacate a judgment, obtained by the said Henry Hodges against the said Chambers, on the 15th November, 1842, for $300, and costs of suit.

The original case was carried to the supreme court, by writ of error, prosecuted by Chambers, about the 3d of May, 1843. In the supreme court, on the 10th of July, 1844, on motion of the plaintiff in error for a certiorari, the clerk of the court below was ordered to send up a more full and perfect transcript of the record, upon suggestion of diminution. At the same term, an alias citation was grantee. At the succeeding term, 23d December, 1845, it was continued; and at the December term, 1846, the judgment was affirmed, with ten per cent. damages. On the 22d of April, 1848, on motion of the plaintiff in error for a rehearing, the same was granted, and the cause reinstated on the docket; which order was set aside, and the application for a rehearing refused, at the December term, 1848, the entry on the minutes of the court, on that ruling, being as follows: “This cause coming on to be heard, the same having been decided by this court at the December term, 1846, and the same being considered, because it seems to the court here, from the previous entries in this case, it would appear, that the application for a rehearing, and to reinstate this cause on the docket, had been granted, and not that an argument only had been ordered, on the legal power of this court to grant a rehearing, as was designed and intended by this court; and it being deemed advisable that the necessary correction should be made, and the mandate revoked and a new one issued: it is ordered, adjudged, and decreed, that the order granting a rehearing in this cause be set aside and revoked, and the application for the same refused. That the mandate formerly issued be revoked and annulled, and that a mandate do now issue, to the end that the judgment of this court, rendered at the December term, 1846. may be observed and fully executed; and the plaintiff in error pay all costs of this cause in this court expended, as well as the costs in the court below expended, and this decision be certified below for observance.” See Chambers v. Hodges, 3 Tex. 517.

Before prosecuting the writ of error in the case above referred to, Chambers had (about four months after the rendition of judgment in the district court), on the 18th March, 1843, presented to the Hon. P. C. Jack, district judge, before whom the judgment was rendered, a petition seeking to enjoin the judgment, and asking for a new trial, on the ground that G. S. Thomas (who confessed the judgment as the agent of Chambers) had no authority so to do, nor to waive the incompetency of the judge. That he had a just defense against the demand of Hodges, who was, indeed, largely indebted to him, and setting forth reasons excusing himself for not having made the application for a new trial at the term when the judgment was rendered. The district judge declined to act on this petition, and indorsed thereon his reasons, which were, that he was originally of counsel for the plaintiff in the original suit. On the 18th April, 1843, Chambers presented to the same judge a petition for a writ of error to the supreme court and supersedeas, which he refused to grant, indorsing thereon, in substance, the same reason therefor, as on the application in the petition for the injunction and new trial.

The entries from the minutes of the district court, showed that the cause was continued on account of the judge having been of counsel; and it also appeared, that the cause had, during its pendency, been twice continued for the defendant, Chambers, on the affidavit of the said G. S. Thomas, acting as his agent in that behalf. The judgment was rendered by the confession thereof made by said Thomas, as the agent of the defendant, Chambers.

There appeared on this record no statement of facts, but among the papers filed in the original suit, and incorporated herein, was the letter referred to in the opinion in this case, from the plaintiff in error to G. S. Thomas. It was long, and much of it devoted to giving instructions to Thomas in relation to various acts to be done by him in certain suits in which he (Chambers) was concerned, in the district court, in Liberty county. So much of this letter as is important, is contained in the following extracts:

“NEW ORLEANS, July 30, 1840.

I do not know exactly when I shall get back; but it shall not be very long. If by any accident, I should not reach Liberty by next court, be very particular in having my business attended to. If you should not previously settle with Moor, do not go to trial without my witnesses being present: viz.: Thomas Johnson, Bazille and Stephen _____. I think I can prove by them, that he is not entitled to what he claims. They are also absolutely necessary in the case of Hodges.” “If any other suits should be brought, have them postponed.”

To this letter was attached a certificate from Thomas, to the effect that, during the absence of Chambers from Texas, from July 30, 1840, to January, 1843, he did not give him (Thomas) a written power of attorney, but promised to write to him instructions from time to time, for the government of his agency in behalf of said Chambers; that he (Chambers) had since informed him that he did so, but that the foregoing letter was the only one he ever received. An affidavit to the same effect substantially, was attached to the petition for injunction.

The petition in this case, set forth the rendition of the judgment complained of, and charged that the same was obtained by the fraudulent collusion of Hodges with the said Thomas, by which the latter was induced to confess the judgment (the mind of the said Thomas then being greatly impaired by habitual intoxication, but now restored) before the said district judge, who had previously been the attorney for said Hodges in the said suit, and was to get a part of the judgment for a fee. The petition alleged the want of authority or agency of Thomas, either to confess judgment, or to waive the incompetency of the judge. The petition also alleged the facts hereinbefore set forth, in...