Rupert v. Brook Mays & Co.

• Decision Date: 08 October 1927
• Docket Number: (No. 10069.)
• Citation: 299 S.W. 474
• Parties: RUPERT v. BROOK MAYS & CO.
• Court: Texas Court of Appeals

299 S.W. 474

RUPERT v. BROOK MAYS & CO.

(No. 10069.)

Court of Civil Appeals of Texas. Dallas.

October 8, 1927.

Rehearing Denied November 5, 1927.

Appeal from Dallas County Court, at Law, Paine L. Bush, Judge.

Suit by Brook Mays & Co. against J. C. Rupert. Order was entered dismissing case for want of prosecution. Judgment for plaintiffs on merits after case was reinstated, and defendant appeals. Reversed and rendered.

Marvin B. Simpson and Leo Brewster, both of Fort Worth, for appellant.

W. R. Fly and W. N. Coombes, both of Dallas, for appellees.

LOONEY, J.

J. C. Rupert, appellant, was sued in the county court at law No. 1, Dallas county, by Brook Mays & Co., appellees, on a promissory note for $350 alleged to have been executed by the defendant, and also to foreclose a chattel mortgage on a player piano.

After defendant answered, the cause was dismissed by the court for want of prosecution, and an order to that effect was duly entered. This was the status of affairs when court finally adjourned for the term.

At the following term, an order was entered by the court reinstating the case and assigning it for trial.

The order of reinstatement was based on an agreement in writing between Walter R. Fly, attorney for plaintiff, and Albert Strawn, who signed the agreement as attorney for the defendant.

When the case was called for trial, the defendant filed a motion to dismiss on the grounds: (a) That the judgment dismissing the cause for want of prosecution was final, and that, after adjournment for the term, the court was without jurisdiction to set the same aside and reinstate the case; (b) that Albert Strawn, who signed the agreement to reinstate the cause as attorney for the defendant, was not in fact employed by defendant, and was without authority to represent him.

The motion to dismiss was overruled by the court, to which action defendant reserved a bill of exception, in which is embodied the evidence introduced on the hearing.

The case then went to trial on its merits, and resulted in a judgment in favor of the plaintiffs, as prayed in their petition, from which Rupert duly perfected and prosecutes this appeal.

By appropriate assignments, appellant presents the case upon the propositions which will be discussed.

The order reinstating the case in effect granted a new trial at a subsequent term of court, which, in our opinion, was prohibited, as the statute is mandatory in its provisions to the effect that motions for new trials shall be made and determined before the end of the term of court.

The judgment dismissing the cause was a final judgment, and, after adjournment of court for the term, was no longer under its control. Revised Statutes 1925, art. 2232; Bradford v. Malone, 49 Tex. Civ. App. 440, 130 S. W. 1013; Ætna Insurance Co. v. Dancer (Tex. Com. App.) 215 S. W. 962; Green v. Green (Tex. Com. App.) 288 S. W. 406.

If, however, it could be said that the agreement of the attorneys to reinstate the cause was equivalent to an equitable proceeding instituted to set aside the judgment of dismissal, still we would be confronted with these questions: (a) Was Albert Strawn appellant's attorney? and (b) if so, was he authorized at the time and under the circumstances to make an agreement that virtually nullified a perfectly valid judgment in favor of the client?

The testimony of the appellant, Rupert, and of Marvin B. Simpson, his attorney of record, and also of Albert Strawn, the attorney who signed the agreement, is to the effect that Strawn was never employed by appellant; was not an attorney in the case; and all he did with reference to the case was in regard to setting the same as a matter of courtesy to Mr. Simpson, defendant's attorney.

The only evidence in the record on which the finding of the court that Albert Strawn was attorney for Rupert and authorized...