Dunman v. Hartwell

• Decision Date: 01 January 1853
• Citation: 9 Tex. 495
• Parties: DUNMAN AND WIFE v. N. W. & T. R. HARTWELL.
• Court: Texas Supreme Court

9 Tex. 495

DUNMAN AND WIFE

v.N. W. & T. R. HARTWELL.

Supreme Court of Texas.

1853.

Where the record, in a case in which process has been served, recites that the parties appeared by their attorneys and agreed to the following decree, &c., the authority of the attorneys cannot be questioned on appeal or writ of error. (Note 85.)

Consent takes away error; and a judgment by agreement or compromise cannot be impeached, unless for fraud, collusion, or like causes.

Where there has been two partitions, and on final judgment the former was re-established, it was but just and proper to require the distributees under the second partition to give an equivalent to the distributees under the first partition for any of the property which the distributees under the second and rejected partition had alienated or consumed in the interval.

Error from Liberty. This case was before the Supreme Court once before, and is reported in 7th Texas Reports, 576. On the receipt of the mandate a decree in accordance with it was made by consent of the parties appearing by their attorneys. Dunman and wife alone prosecuted this writ of error.

H. N. & M. M. Potter and Allen & Hale, for appellees.

HEMPHILL, CH. J.

The record in this case is very defective. The proceedings and judgment were based on a mandate of the Supreme Court; but the mandate is not transcribed. It should have been the first entry, and a copy should have been transmitted with the transcript. The judgment which we are invoked to revise and reverse was entered by consent. It commences with the recital that the “case coming on to be heard upon the mandate from the Supreme Court, the parties appeared by their attorneys and agreed to the following decree to be entered as the judgment of this court,” &c., &c. This agreement was made by the attorneys of the parties; but no objection is taken to the judgment on that ground. It is not assigned or contended that their authority should have appeared of record. No question is raised as to their power. That they had competent authority must be presumed until it is impugned and the contrary shown, and the judgment must be taken as having been agreed to by the parties themselves; under this aspect the appellants are at once confronted with the general principle that consent takes away error, and that a judgment by agreement or compromise cannot be impeached, unless for fraud, collusion, or like causes, none of which appear in this record or are alleged or assigned. (Story v. Hawkins et al., 8 Da. R., 12; French v. Hotwell, 5 Johns. Chan. R., 555; 14 Ves. R., 31.)

The appellants are concluded by their own consent, and their appeal cannot be sustained.

But if the decree had not been entered by consent there does not appear any such substantial error prejudicial to the appellants as would have authorized a reversal.

The mandate of the Supreme Court required the rights of Mrs. Hartwell, under the deed of gift, and of her minor children to a portion of the estate under the law to be respected; and this appears in substance to have been done, in accordance with the spirit and intent of the mandate, and without injustice to the other distributees of the estate.

After deducting the property or its value embraced in the deed of gift, the surplus was directed to be equally...