Dillon v. State

• Decision Date: 01 January 1851
• Citation: 6 Tex. 55
• Parties: W. D. DILLON v. THE STATE.
• Court: Texas Supreme Court

6 Tex. 55

W. D. DILLON

v.THE STATE.

Supreme Court of Texas.

1851.

Where the entry of judgment in a suit for a divorce recited that a verdict was found in favor of plaintiff, whereupon the attorney (naming him) for plaintiff moved the court for a decree of divorce and informed the court that he had not been employed by the plaintiff to bring the suit,” &c., the attorney was ruled to show cause why he should not be stricken from the roll: Held, That the record in the suit for divorce was incompetent to prove the admissions of the respondent recited in the entry of the judgment.

A case in which it was held that an attorney was properly stricken from the roll for representing a plaintiff in a suit for divorce without authority.

Appeal from Polk.In this case a rule was entered against the appellant at the relation of Samuel D. Hay and W. C. Abbot, esquires, two attorneys and counselors of the courts of the State, to show cause why he should not be stricken from the roll of practicing attorneys on a charge of malpractice.The proceedings arose out of a suit in the District Court of Polk county, brought by the said Dillon, in the name of Martha Ann Walker, against her husband, John D. Walker, for a divorce; which suit was prosecuted to a verdict in favor of the plaintiff.But the presiding judge, being satisfied from the declarations of the said Dillon, spread upon the record, embodied in a motion made by him for a decree of divorce on the verdict, that there was fraud and collusion in the prosecution of the suit, and that the said Martha Ann Walker had never directed or authorized the same to be brought and prosecuted, dismissed the suit at the costs of the defendant.The entry of the judgment in the suit for divorce recited that “William D. Dillon, esq., counsel for plaintiff, moved the court for a decree of final divorce, and informed the court that he had never seen the plaintiff nor had any correspondence with her upon the subject of this suit; that he had no authority from her to prosecute the same; that he had been spoken to by the defendant in relation thereto, who was anxious to have the divorce obtained; that he had been spoken to in relation to the suit by a person whom he had supposed to be the mutual friend of the parties; that he was partly employed by the defendant.”In his answer to the rule to show cause he said “that John D. Walker, the defendant in the suit referred to for a divorce, applied to him to bring suit against the said Martha Ann Walker for a divorce; that he was so employed, but having investigated the case, he informed the said Walker that he could not succeed, and consequently he abandoned the suit; that afterwards a gentleman, whom he did not know, requested him to bring the suit for the said Martha Ann against the said John D. for a divorce.Knowing her cause of action to be good, respondent, without any promise of a fee from said John D. in said last named suit, or without having ever received from him or any other person for him any fee whatever for the same, brought said suit, expecting to be paid for the same by the plaintiff; that he was well acquainted with many of the friends of the said Martha Ann, and had brought the action for her in good faith; that from recent facts in relation to the said divorce the respondent has reason to suspect that John D. Walker had some part in sending the messenger to him to bring the suit; that when respondent, on the trial of said cause, was questioned by the court in the premises, he answered in reference to the two applications that had been made to procure the divorce, as above set forth, and not in reference to the last application alone, on which the suit was finally brought.”

The only evidence introduced at the hearing was the record in the case of Walker v. Walker for divorce, to the admission of which the respondent excepted.The order was made striking the name of the respondent from the roll of attorneys.The respondent appealed.The errors assigned were--

1st.The admission of the evidence offered by the State.

2d.Striking respondent from the roll for want of evidence.

Yoakum and McCreary, for appellant.Dillon explains one point of the record-- that he had previously undertaken to bring a suit for defendant, but finding the ground untenable had abandoned it.

It may be said his answer is no evidence.Surely he will be permitted to explain what he did say.To take his acknowledgment, write it down in his absence, or without reading it to him, or permitting him to say whether such was his acknowledgment, and then bring up that writing in judgment against him, without the proof of any witness to show that such record was true, is not good law, unless he have leave to explain.

But it is said “the record cannot be contradicted.”True, when the record speaks to the point it cannot.But when it goes beyond its legitimate functions and talks about other people not parties to the suit, or about matters not in issue, then it is entitled to no credit.For which reason Dillon objected to it as evidence; for another reason also, he had no notice, no opportunity to cross-examine.He...