Opinion
Decided November 19, 1898.
Appearance by Attorney for Claimant Under Execution.
The statement by an attorney in the clerk's presence that he represents the plaintiff, with the request that his name be so entered on the docket, is not such an appearance in a proceeding for trial of the right of property seized under plaintiff's execution as will authorize the court to dispose of the action by quashing the execution at the first term, instead of continuing the cause because of plaintiff's non-appearance, as required by the statute in such case. Rev. Stats., art. 5300.
APPEAL from Floyd. Tried below before Hon. S.I. NEWTON.
Joe Rosson and Morgan Moore, for appellant.
No brief for appellee.
On August 23, 1890, the appellant recovered a judgment against William Perrin in the County Court of Knox County, Texas. On May 22, 1897, an alias execution upon this judgment was issued to Floyd County, and was levied upon a number of horses as the property of the defendant in the judgment. On July 9, 1897, Ida Perrin, the appellee herein and the wife of William Perrin, filed her claimant's oath and bond, asserting her separate ownership of the property levied upon.
At the August term, 1897, of the District Court of Floyd County, which was the first term after the filing of the claim, the appellee filed her motion to set aside the execution and to discharge her bondsmen, alleging that the execution was void because it did not appear from the face thereof at what term or by what court the judgment was rendered upon which the process issued. The court at the same term, in the absence of the plaintiff or his counsel, sustained the motion, quashed the execution, and ordered the discharge of the claimant and her sureties, and the release of the property from the levy.
At the succeeding term, held in February, 1898, the plaintiff in the judgment and execution appeared and filed his application to set aside the judgment rendered at the July term, 1897, alleging that he had a valid judgment and execution against William Perrin, showing by proper averments that the execution was not subject to the defects on which was founded the judgment dissolving it at the preceding term; that the property levied upon was the community property of William Perrin and Ida Perrin; showing further that neither the plaintiff nor his attorney had appeared at the preceding term of the court; and praying that the judgment then rendered be set aside, and that issues be made up between the parties, to the end that a trial of the right to the property levied upon might be had upon the merits of the controversy.
The defendant replied to this application, alleging an appearance by the plaintiff at the preceding term, the character of which appearance is disclosed by the following affidavit of the district clerk of Floyd County: "Morgan, Stephens Moore, attorneys who live at Benjamin, Texas, 115 miles from this court, appeared at the last term of this court and said they represented plaintiff in the cause of Stevens and Perrin, No. 45, in District Court, and Morgan Stephens' names were by me placed on the docket in said cause as attorneys for plaintiff, and on the first day of said term of court said attorneys appeared and filed a copy of an execution in said cause. It is not my custom as clerk to place attorneys' names on the docket as attorneys unless pleadings show it or unless directed by the attorneys to do so, and I think I noted said Morgan Stephens' names on said docket as attorneys for plaintiff at their request. Said attorneys had no other case in this court at said term of court, except the cause of Stevens and Perrin. Mr. Stephens, in conversation while he was here, told me he was not interested in the cause, but was only accompanying Mr. Morgan."
Our statute provides, that "if the plaintiff does not appear at the first term, the case must be continued to the next term * * *; but if he does not then appear on or before the appearance day of the term, he may be nonsuited." From this it is manifest that the ex parte proceeding upon which the action of the court was predicated was erroneous, unless the plaintiff must be held at that term to have entered an appearance, within the meaning of the law.
We are of the opinion that the facts stated in the clerk's affidavit (and also in the appended affidavit of an attorney, which we deem it unnecessary to set out) do not constitute such an appearance. A statement by an attorney in the clerk's presence that he represents a party litigant, with a probable request, as in this case, that his name be entered upon the docket as the attorney for the party, can not, it seems to us, constitute such an appearance as is contemplated by law. Says Chief Justice Willie, in Field v. Fowler, 62 Tex. 68: "How this appearance is to be effected is not prescribed, but when the parties come into court, as in this case, and have an entry made upon the minutes that they have appeared, it is sufficient to prevent the consequences of a failure to appear on either side." So, the statute, article 1241, regulating proceedings in ordinary suits, prescribes that "the defendant may * * * by attorney * * * enter an appearance in open court, and such appearance shall be noted by the judge upon his docket and entered in the minutes, and shall have the same force and effect as if citation had been duly issued and served as provided by law."
We hence deduce that, in the absence of pleadings filed or of an appearance in open court entered upon the minutes thereof, it would be unsafe and unwise to hold parties responsible for an appearance in courts of record upon such vague and uncertain conditions as those here disclosed.
The sufficiency on its face of the plaintiff's application is not questioned here; but the record indicates that the court overruled the motion on account of an erroneous apprehension of what constitutes an appearance. Hence we reverse the judgment and remand the cause, that the matter in controversy between these parties may be tried upon its merits. It is so ordered.
Reversed and remanded