Merritt v. Clow

• Decision Date: 31 December 1847
• Citation: 2 Tex. 582
• Parties: ROBERT MERRITT ET AL. v. ROBERT J. CLOW
• Court: Texas Supreme Court

2 Tex. 582

ROBERT MERRITT ET AL.

v.ROBERT J. CLOW

Supreme Court of Texas.

December Term, 1847.

Writ of Error from Washington County.

A judgment entered by agreement in the district court, pending a writ of error, that the petition be dismissed nune pro tunc, will not be revised by the supreme court.

An authority will be presumed when an attorney appears for a party against whom no writ has issued; yet, if the defendant prove that he had no authority, his rights will not be prejudiced by the attorney's acts, and an unauthorized confession of judgment by him will be set aside.

The record of a judgment purporting to be by confession of the attorney at law and in fact of the defendant, prior to the act of 1846, p. 393, sec. 116, though no power of attorney is found of record, is prima facie evidence of the truth of its contents, and establishes prima facie that the attorney was duly authorized to confess judgment. [23 Tex. 104;26 Tex. 84.]

A judgment by confession and upon compromise is a waiver of all previous errors. [1 Tex. 635;4 Tex. 373;9 Tex. 495;13 Tex. 36;22 Tex. 276.]

Robert J. Clow, the defendant in error, filed his petition in the district court, alleging that he was the surviving partner of a mercantile firm, then lately in business, under the name of Merritt & Clow. That upon the death of his partner, Martin, Samuel Patterson, who is made defendant, had possessed himself of the partnership effects, and had been and was wrongfully disposing of and converting them to his own use, to the damage of the plaintiff twenty thousand dollars. He alleges, also, a loss of credit consequent upon the illegal acts of the defendant, to his further damage five thousand dollars.

Process issued, and property was attached; upon which, on the 22d day of May, 1840, Patterson entered into a replevy bond in the sum of thirty-six hundred and thirty-eight dollars (the alleged valuation of the goods then in his possession), with Joseph H. Wood and Richard R. Peebles as his sureties. Subsequently, having been ordered to give additional security on the 20th day of March, 1841, he renewed his bond, with Gordon, Farral, White and Merritt as sureties. Some time after, upon a suggestion of the death of Patterson, Merritt, by consent, was made defendant to the suit.

At the fall term, 1843, by what is termed in the record an “interlocutory decree,” the defendant, Merritt, was adjudged to pay the plaintiff the sum of three thousand five hundred and thirty dollars and fourteen cents, with interest; and the matters not embraced therein, and unsettled, were referred to a commissioner for his report upon them.

At the October term, 1844, by what is called a “final decree,” it was adjudged that the plaintiff recover of the defendant, Merritt, six thousand nine hundred and nine dollars and fifty-six cents, in addition to the sum formerly adjudged to the plaintiff. Subsequently, at the same term, a final judgment, by consent and agreement, was entered as follows:

“And on this day came the complainant, Robert J. Clow, in his own proper person, and the said Robert Merritt, Joseph H. Wood, Richard R. Peebles, Jesse Farral and Hardin White, securities for said Samuel Patterson, by their attorney and agent Josiah J. Crosby, Esq., one of the attorneys of this court, and agreed and consented to the following:

That the said parties of the second part, the said Merritt, Wood, Peebles, Farral and White, shall pay to said complainant, Robert J. Clow, the sum of twenty-five hundred dollars in cash on or before the 1st day of December next; and the sum of eighteen hundred dollars by the first of December, 1845, bearing interest at the rate of eight per cent. from this date. And it is further agreed, that in satisfaction of the last payment, said Clow shall admit all legal and just claims in the hands of said parties of the second part against the said firm of Martin & Clow, provided it does not exceed eight hundred dollars; but should it be over that amount, to be retained by said parties of the second part as a subsisting claim in their hands, and should any dispute arise as to the legality or justice of said claims, they are to be referred to a referee chosen by each party, with the privilege of selecting an umpire, whose decision shall be final. And upon the compliance of the parties of the second part to and with this agreement, then it shall operate as a full acquittance and discharge of both the interlocutory and final decree rendered in the said case, and annul all the rights the complainant has therein, or which he may have under any sale made under the interlocutory decree; and should it become necessary to enforce this agreement by an execution, the same shall issue for a peremptory sale, without appraisement, and defendants to pay the costs in the case of complainant against said Samuel Patterson and others expended. It is therefore ordered and decreed that a judgment be and is hereby entered in accordance with the said agreement now consented to, and admitted in open court by the parties aforesaid.”

In the vacation, after this compromise and confession of judgment, the defendants therein -- the present plaintiffs in error -- petitioned the judge for a rehearing and a perpetual injunction of this judgment, representing that the attorney, Crosby, had never been empowered by them to act as their attorney in the premises; that the judgment had been rendered against them without their consent or knowledge, and that it was otherwise illegal. The judge awarded the injunction; but, on motion, upon the coming in of Clow's answer, denying all the equity set up in the petition, and alleging that the attorney had acted in the premises with the authority and assent of all the complainants, the injunction was dissolved, but, on motion, the petition was continued over for final hearing. Before the next term of the court, in May following, this writ of error was obtained for the purpose of bringing up the proceedings in the original cause, and upon the petition for a review and injunction. At the fall term thereafter, 1845, the parties entered into an agreement, in which, after reciting the substance of the proceedings of the previous spring term, and the suing out of the writ of error from the order of the court dissolving the injunction and that the petition for review and an injunction, “through mistake, was ordered to stand over as an original bill for a further hearing, when, in fact, they say the dismissal of said supersedeas and injunction did operate, in effect, as a dismissal of said bill.” They agree that “the said decree, dismissing said injunction and supersedeas, did, in effect, dismiss said complainant's bill, and that the entry thereof be so amended, nunc pro tunc, as to show that said bill was dismissed.”

Allen and Webb, for plaintiffs in error.

Gillespie, for defendant in error.

Mr. Justice WHEELER delivered the opinion of the court, Mr. Justice LIPSCOMB not sitting, having been of counsel below.

Our inquiries will relate to:

1st. The proceedings upon the petition for a review and injunction; and

2d. The legality and validity of the judgment sought to be enjoined.

1. The alleged absence of any authority in the attorney,

Crosby, to represent the parties and to compromise and confess judgment against them, was relied on by the complainants as the foundation of their right to relief. The answer negatived this averment, and denied all the circumstances upon which their equity was founded. The injunction was dissolved, therefore, of course.

But it was the privilege of the complainants, notwithstanding the dissolution of the injunction, to have conducted the cause to a hearing upon evidence touching the truth of the matters set forth in their petition (5 Stat....