Thomas v. Driver

In this case in the court below defendant in error, R. I. Driver, recovered a personal judgment against plaintiff in error, Woodlief Thomas, for the sum of $14,714.34, with foreclosure of chattel mortgage lien against certain personal property described in the judgment. The appeal complains only of the judgment of the lower court overruling the plea of privilege of plaintiff in error to be sued in Webb county, his alleged residence.

The following propositions of error are urged by plaintiff in error.

First: In due time plaintiff in error filed his plea of privilege in the district court, which was in due form. He insists that defendant in error filed no controverting affidavit. The transcript, as brought up by plaintiff in error, contains no controverting affidavit, but on motion of defendant in error we granted him permission to file a supplemental transcript which contains a controverting affidavit showing the order of the presiding district judge duly signed by him setting the hearing on the plea of privilege at 9 o'clock a. m. on the 2d day of October, 1931, and directing that notice be served on plaintiff in error. On this issue the judgment contains the following recitation of facts: "This the 5th day of October, 1931, this cause came on to be heard first upon Woodlief Thomas' plea of privilege, which had been set for hearing October 2d 1931, but was postponed to this date, service of the controverting affidavit having been had in the manner required by law, plaintiff announced ready and defendant by Gordon Gibson, a member of the firm of Gibson Blackshear, Attorneys, appeared as Amicus Curiæ for the defendant Woodlief Thomas, the pleadings were presented and evidence thereupon heard and the Court found that the note sued upon was payable at Nacogdoches, Texas, and that the attorney Gordon Gibson represented the defendant Woodlief Thomas."

The record affirmatively denies this proposition.

In this connection plaintiff in error has filed a motion to strike the supplemental transcript. The motion to perfect the transcript was filed and presented to us on the day this case was submitted in this court and by affidavit proof was made showing good cause for the delay in filing the motion. In so far as the motion to strike controverts the fact issues made by the motion to file, we expressly find the issues in favor of the motion to file.

Second: It is contended that plaintiff in error was not served with notice of the controverting affidavit. The record contains no copy of notice served on him, and as he made no personal appearance and filed no answer to the merits, and as this is a direct attack upon the judgment of the lower court by way of appeal, plaintiff in error contends that the failure of the record to contain a copy of the service is fatal to the judgment. The proposition of law relied upon by plaintiff in error does not control the case. There is no statement of facts in the record. The following pleading was filed in the lower court by Gordon Gibson, who purported to appear as amicus curiæ:

"R. I. Driver vs. Woodlief Thomas, et al. #7229 "In the District Court, Nacogdoches County, Texas. "To the Honorable the Said Court:

"Gordon Gibson, a practicing attorney of the Laredo, Texas, bar, respectfully requests leave of this Court to appear herein as amicus curiæ for the purpose of calling the attention of the Court to the fact that this Court is without jurisdiction to hear and determine the questions purported to be raised by plaintiff's affidavit in this cause controverting the plea of privilege of the defendant Woodlief Thomas, because there has been no legal service of the controverting affidavit upon said defendant or any other person on whom such service might be made according to law and said defendant Woodlief Thomas is without legal notice of the time and place of the hearing of such issues.

"Gordon Gibson, Attorney at Law,

Laredo, Texas."

When this pleading was filed the trial court, by the recitations of the judgment, duly heard the issues raised by the pleading and determined, first, that Mr. Gibson did not appear as amicus curiæ but as attorney for plaintiff in error. On this finding plaintiff in error was in court as if he had appeared in person. Second, plaintiff in error being before the court for hearing on the issues made by the plea filed by Mr. Gibson, the trial court found, as shown by the excerpt from the judgment quoted above, that service of the controverting affidavit had been had in the manner required by law. In the absence of a statement of facts, plaintiff in error is bound by the trial court's conclusion that he appeared in the lower court by his attorney, Gordon Gibson, and that he was duly served with notice of the controverting affidavit.

In his original petition defendant in error also made Atha Thomas of La Salle county a party defendant. Since Mr. Thomas is in no way a party to this appeal, we have no power to consider plaintiff in error's proposition complaining of the ruling of the lower court as it related to Mr. Thomas.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing. As against our conclusions stated in the original opinion, plaintiff in error insists that Mr. Gordon Gibson appeared as amicus curiæ and not as his counsel. The facts recited on the face of the record support our conclusions on this issue. While Mr. Gibson filed a plea in this case, in which he requested leave of the court to appear as amicus curiæ, it is recited in the judgment that he appeared as "amicus curiæ for the defendant, Woodlief Thomas." No such office is recognized in our jurisprudence as amicus curiæ for a party litigant. If Mr. Gibson desired to appear in this case for any purpose, he should have made his request of the court, and, if not granted, stayed out of the case. The court was not required by law to permit him to appear as amicus curiæ. Having appeared without an order of the court fixing his status, it was clearly the province of the court to require of him an explanation of his presence. Upon inquiry, the court found that Mr. Gibson was not an amicus curiæ, "a friend of the court," "a by-stander," but that he represented plaintiff in error in his appearance. As we have no statement of facts before us, we do not know all the circumstances in evidence relied upon by the court to support this conclusion. But the fact recited by Mr. Gibson in his plea, that he was "a practicing attorney of the Laredo, Texas, Bar," within itself would support the trial court's judgment. When an attorney leaves his home and travels across the state of Texas from the city of Laredo, on the west, to the city of Nacogdoches, on the east, for the purpose of appearing in a particular piece of litigation, the trial court is justified in believing that he had made this journey not as "a friend of the court," but as diligent counsel for his client. Of course, if the court had granted Mr. Gibson permission to appear as amicus curiæ, we would have an entirely different question before us and this case might fall within the rule announced by Chicago, R. I. P. Railway Co. v. Neil P. Anderson Co., 105 Tex. 1, 141 S.W. 513, Ann.Cas. 1915A, 198; International G. N. Railway Co. v. Moore (Tex.Civ.App.) 32 S.W. 379; Elliott v. Standard Steel Wheel Tire Armor Co. (Tex.Civ.App.)173 S.W. 616. But, as Mr. Gibson voluntarily appeared in this case, without an order of the court fixing his status, his client must bear the consequences of his relation, in fact, to this litigation, and the trial court having fixed this relation as attorney for plaintiff in error, plaintiff in error is bound by the judgment.

The facts recited upon the face of the record herein bring this proposition of amicus curiæ within the rule announced by this court in Olcott v. Reese, 291 S.W. 261; Walker County Lumber Co. v. Edmonds,298 S.W. 610; by the Fort Worth Court of Civil Appeals in Fort Worth D.C. Ry. Co. v. Greathouse, 41 S.W.2d 418, and by the San Antonio Court of Civil Appeals in Flinn v. Krotz, 293 S.W. 625, 626. The last case clearly holds that an attorney, though purporting to appear as amicus curiæ, may bind his client by his appearance where the appearance is not made by permission of the court. The court said:

"There is no merit in appellant's contention that the activities of Mr. Faulk as amicus curiæ constituted an appearance in behalf of the defendant. In the absence of any showing by evidence or presumption that he was acting at the instance of the defendant, his pleas and motions were not binding upon the defendant and cannot be treated as an appearance by the latter. Hurd v. Inglehart (Tex.Civ.App.) 140 S.W. 119, and authorities there cited."

All other matters complained of by plaintiff in error in his motion for rehearing have had our most careful consideration and are overruled without further discussion.

For the reasons stated the motion on rehearing is overruled.