State v. Murphy , 137 S.W. 708 ( 1911 )

This writ of error was sued out from a judgment dismissing a suit brought by the state against H. Murphy to cancel an award and sale of certain public school lands situated in Sutton county made to him by the Commissioner of the General Land Office respectively on December 2, 1905, and April 6, 1907.

The matters leading up to and pertaining to the judgment of dismissal, as shown by the record, are, briefly, as follows: (1) That the state's original petition, which was filed in the district court of Sutton county on October 10, 1907, recites that she is "suing herein by her Attorney General," and is signed, "R. V. Davidson, Attorney General, W. E. Hawkins, Assistant Attorney General, and D. E. Simmons." (2) That on April 1, 1908, an agreement as to the facts, signed by D. E. Simmons, C. H. Jenkins, and Cornell Wardlaw, as attorneys for plaintiff, and Lee Upton, attorney for defendant, was filed in the case. (3) That defendant's answer, signed, "Lee Upton, Wright Wynn," was filed November 10, 1908. (4) That on November 2, 1909, defendant filed an amended answer, in which they alleged certain attorneys (naming them), including Messrs. Simmons, Jenkins Cornell, are appearing in the case for the state, who were employed for a certain party claiming the land adversely to defendant; and that neither the Attorney General of the state, nor any one connected with his office, is representing the plaintiff in the case, but it is being prosecuted in her name for the benefit of a third party in whose interest said attorneys were employed. (5) That on the same day the cause was called for trial, and, the plaintiff having announced ready, defendant filed an application for a continuance, which does not appear to have been acted on. (6) That he then filed a sworn application for a change of venue, with supporting affidavits of three other persons. (7) That on the same day the state filed a contest to the application, accompanied by the affidavit of a credible person, denying the truth of the grounds upon which the application was made, which contest was signed, "R. V. Davidson, Attorney General, D. E. Simmons, and C. H. Jenkins, Attorneys for the State." (8) That the defendant then filed exceptions to and a motion to quash the state's contest of his application for a change of venue, on the ground that the Attorney General was not present in person on the court to prosecute the cause, but that plaintiff was being represented in the cause by C. H. Jenkins and D. E. Simmons. (9) That the state then filed exceptions to such motion and defendant's exception, on the ground that they were filed after she had announced ready, that it was not sworn to, nor had the attorneys appearing for the state been cited to show their authority to represent the plaintiff, which exceptions were signed, "R. V. Davidson, Attorney General, D. E. Simmons, and C. H. Jenkins, of Counsel for the State." (10) That, accompanying these exceptions, there was filed, in behalf of the state, a written statement of D. E. Simmons and C. H. Jenkins, to the effect that this suit was originally brought under the direction and by the authority of the Attorney General of the state, and that the original petition in the case was prepared in the Attorney General's office by W. E. Hawkins, Assistant Attorney General, which was agreed to by the Attorney General, and that Hawkins signed his own and the Attorney General's name to the petition, and that both Simmons and Jenkins had authority from the Attorney General to appear in behalf of the state; Jenkins' authority being in writing. (11) That the court overruled the state's exception to defendant's motion to quash the contest of defendant's application for a change of venue and sustained his motion to quash and dismissed the case for want of proper prosecution, reciting that, notwithstanding, said Simmons and Jenkins had at all times been present in attendance on the court offering to represent the state and urging their right to do so.

Although there are several assignments of error presented, we need only consider the one which complains of the court's action in rendering judgment dismissing the case upon the grounds above stated.

While it is necessary that an attorney be authorized to act for a client, yet, as he is an officer of the court, it is unnecessary for him to show his authority, unless it is properly contested by the adverse party, for the presumption in favor of an attorney's authority to act for any client he professes to represent is well established. Fowler v. Morrill, 8 Tex. 154; 4 Cyc. 928 et seq. Articles 272, 273, 274, Rev.St. 1895, prescribe the mode and procedure of contesting such authority of an attorney at law; and it is held In Hess v. Webb, 113 S.W. 618, that his authority can be attacked in no other way. It is also stated in 4 Cyc. p. 930, § 5: "The question of an attorney's authority to represent an alleged client cannot be raised collaterally, or on a demurrer, nor should it be set up in a pleading; but must be on motion made directly for that purpose, and supported by affidavits." Besides, it is held by the same authority, in a preceding section (section 4): "The authority of an attorney to represent his alleged client cannot be questioned at the trial, and such an objection should, it seems, be taken at the first term."

It cannot be assumed as a matter of law that the Attorney General was without authority to procure the services of counsel to assist in representing the state in the trial of this case, nor can it be presumed that counsel who appeared for the state were there for any, other purpose than to truly represent her interest, nor to accomplish any other purpose than that on which, as appears from the face of plaintiff's original petition, the suit was instituted.

Wherefore the court erred in rendering judgment dismissing the case. Therefore the judgment is reversed, the cause reinstated in the district court and remanded there for trial on its merits.

Reversed and remanded.