Harkins v. Murphy & Bolanz

• Decision Date: 03 July 1908
• Parties: HARKINS v. MURPHY & BOLANZ et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

112 S.W. 136

HARKINS v. MURPHY & BOLANZ et al.^†

Court of Civil Appeals of Texas.

July 3, 1908.

Error from District Court, Dallas County; Richard Morgan, Judge.

Action by James Harkins against Murphy & Bolanz and others. Judgment for plaintiff, and defendants bring error. Writ dismissed.

Herman Kruegel, for plaintiffs in error. Cobb & Avery, for defendant in error.

RAINEY, C. J.

This suit was instituted in the district court of Dallas county by James Harkins, acting by his agent and attorney in fact, Herman Kruegel, against Murphy & Bolanz and others, as defendants, in the nature of a bill of review and to set aside the judgment and for a new trial in case No. 20,340, styled "James Harkins v. Murphy & Bolanz et al."; the judgment therein having been rendered May 17, 1901. The pleadings of plaintiff are voluminous, consisting of 47 pages of typewritten matter. The defendants excepted to the petition, among other things, for the reason that the suit was brought and was being prosecuted by Herman Kruegel, who is not an attorney at law, and has no right to prosecute suits for others in the courts of this country. This exception, among others, was sustained, and, the plaintiff declining to amend, the suit was dismissed. The plaintiff, acting solely by said Herman Kruegel, perfected a writ of error to this court. Defendants in error duly filed a motion in this court to dismiss the writ of error, on the ground that this suit was brought by, and the petition for writ of error and assignments of error were filed by, and the writ of error is being prosecuted by, Herman Kruegel, as agent and attorney in fact for James Harkins, and said Kruegel is not a lawyer, and has no legal right to bring and prosecute suits and writs of error for others. The pleadings of plaintiff upon their face allege that Herman Kruegel is not a lawyer, but that he is agent and attorney in fact for James Harkins.

The question presented by the motion is: Can a party appear in a court of record, and prosecute or defend his suit therein, by his agent or attorney in fact, who is not an attorney at law duly licensed to practice as such? The plaintiff in error contends that section 10, article 1, of the Constitution provides that in criminal prosecutions the accused has the right of being heard "by himself or counsel or both," and that this power is broad enough to include his right to appear by agent or attorney in fact, although such agent or attorney in fact is not an attorney at law. The laws of this state at the time of the adoption of the Constitution required that one desiring a license to practice as an attorney and counselor at law present his application for license to the district court, accompanied by a certificate from the county commissioner's court that he is 21 years of age, and that he has a good reputation for moral character and honorable deportment, after which he was required to undergo an examination; and, if satisfied with his legal attainments, the court was authorized to give him a license. He was required to take the constitutional oath of office, and could be removed or suspended from practice by any of the courts in which he was authorized to practice. There were other laws in force at the time, carefully guarding the right to practice law, not only in the admission to practice, but in the standing and maintaining such rights thereafter. Rev. St. 1895, art. 255 et seq. Since the adoption of the Constitution the law has been made much more stringent in these requirements (Gen. Laws, 1903, p. 59, c. 42), and the course of study to be pursued by the applicant has been carefully mapped out (Rules for Supreme Court, 96 Tex. 637). An attorney, after being admitted to practice, becomes an officer of court, exercising a privilege or franchise. 4 Cyc. 898.

The bill is signed by Herman Kruegel, agent and attorney in fact. Agency is the legal relation founded upon the express or implied contract of the parties, or created by law, by virtue of which the party—the agent—is employed and authorized to act for the other—the principal. Mechem on Agency, p. 1, § 1. If the contention of plaintiff in error is correct, then, as stated by Chief Justice Marston in the case of Cobb v. Judge of Superior Court, 43 Mich. 290, 5 N. W. 310: "Parties may appear by agents possessing no legal qualification or even ordinary intelligence, and of the worst possible character. They may be minors, and may even be persons who have been disbarred and removed by this court from practicing as attorneys and solicitors. They could not practice as attorneys, possessing neither the legal...