Hoffman v. Cage

Citations

• 31 Tex. 595

Syllabus

<p>Where a defendant had not been served, but an attorney appeared for him, so far as to object to the evidence on account of variance, and to force a plaintiff to take a non-suit, the non-suit discharged that party, who was only indorser, and released the attorney from further duty and power in the cause, unless he obtained the express assent of his client to renew the litigation. And an agreement of the attorney to allow judgment to go against the client, not served, did not bind the latter.</p> <p>The note fell due 9th June, 1861; the suit was commenced 25th November, 1861; no citation was issued against the maker until 17th November, 1865, and no citation ever issued against the indorser; the first stay law was passed 7th December, 1861, the 2d section whereof excludes parties “who have cases now pending in court.” (Paschal’s Dig., Art. 5127.) The law did not arrest the process, and the court must presume that the plaintiff countermanded its issuance. The liability of the indorser was not fixed. (Paschal’s Dig., Art. 229, Note 290.)</p> <p>The mere institution of the suit, with a suppression of process, does not fix the liability of the indorser. The fixing the liability must have a common-sense interpretation.</p> <p>The ;court cannot recognize the existence of the relation of attorney and client until the court had acquired jurisdiction over the party, or the attorney exhibits a warrant of authority.</p>