
    Field & Co. v. T. F. Fowler.
    (Case No. 5229.)
    1. Pleading—Trial of right of property.— Under art. 4335, E. S., the appearance of the defendant entered on the minutes of the court, in an action for the trial of the right of property, whether such appearance be made in person or by attorney, has all the effect of an answer in preventing a judgment by default, until he refuses to join issue under the directions of the court.
    3. Same.— The effect of such an entry of appearance continues, after the attorney withdraws from the case, so long as no order is entered setting the appearance aside, until the defendant refuses to join issue in the time prescribed, by the court.
    3. Practice — Agreement of counsel — Judgment by default.— A party-to an action for the trial of the right of property, whose attorney after entering an appearance had abandoned the case before pleading, received from' the attorney of the opposing party the promise that, under the circumstances, he would take no action in the case without notifying him. He was notified, but the notice was so short that he could not reach the court-house in time to prevent a judgment against him. Held, that the judgment by default should have been set aside, and this, though it was taken on the application of the partner of the attorney who had promised to give notice.
    
      Appeal from McLennan. Tried below before the Hon. B. W. Rimes.
    This was an appeal prosecuted by Geo. W. Jackson, who was one of the sureties on a claimant’s bond executed by Field & Co., to re-verso a judgment rendered against him on the bond by default, on the 7th day of December, A. D. 1883.
    In the spring of 1883, a writ of execution was issued out of the district court of McLennan county, Texas, in cause Ho. 3842 on the docket of said court, in favor of Tilman F. Fowler v. C. P. Field. By virtue of this writ the sheriff of McLennan county, on the 25th of April, 1883, levied upon and took into his possession about three hundred head of sheep as the one-half interest and property of C. P. Field in the sheep in herd at the ranche and premises of Field & Co. in McLennan county; the sheep were valued by the sheriff at $750.
    On the 3d day of May, 1883, Field & Co., a partnership composed of W. W. Field, H. C. Anderson and Caroline F. Joyner, filed an affidavit as claimants of the property, alleging that the property was not the property of Chas. P., alias Clarence P. Field, as stated in the levy, but was in fact the property of Field & Co.
    On the same date Field & Co. filed their claimant’s bond, on which the appellant Geo. W. Jackson, and one Monroe W. Duncan, were sureties. On the 18th day of May, A. D. 1883, an appearance was entered in behalf of both parties. Ho order was then made by the court directing the formulation of issues, and no issues were in fact presented.
    On December 7, 1883, D. A. Kelley, one of the attorneys of the claimants, and who had made an appearance in the cause in May, 1883, had the name of himself and of his partner, M. D. Herring, stricken from the docket as attorneys for defendant, and thereupon a judgment by default was awarded the plaintiff, without further notice.
    The judgment was against the claimants for the sum of $860, and for costs.
    On the next day, December 8, the appellant filed a motion to set aside the judgment by default, which stated, amongst other things, that on the 6th of December the appellant called to see the attorneys previously employed by Field & Co., in reference to the defense of the suit, and was informed by them that they would not defend the case,—their fee not having been paid or secured; that said attorneys expressed the opinion that the case would not be tried at that term of court, and that it was probable that the claim, of defendant would not be resisted by plaintiff, and advised the appellant to call on the attorneys of plaintiff to ascertain their purpose with reference to the prosecution of the suit; that he did so call on John T. Flint, one of the attorneys of plaintiff, and conferred with him in reference thereto; that he was informed by Flint that it was not then determined what action they would take in the matter, but that before any action was taken they would notify appellant of their determination with reference to the prosecution of the suit; that this promise was made on the 6th day of December, 1883. That on the morning of the 7th, appellant was notified by message that the case was about to be called in court; that he immediately went to the court-house, and when he reached there, he was informed that judgment had already been taken by default, etc. That he failed to cause issues to be presented and an appearance to be made, because he relied upon these representations; that he was induced by the representations of plaintiff’s attorneys to believe that they were undecided whether or not they would attempt to subject the property in controversy to the payment of plaintiff’s debt. He further stated that the defendant had a good, legal and equitable title to the property seized and that 0. P. Field had no interest in it. This motion was sworn to.
    Another motion was filed by appellant on the same day to set aside the judgment by default as having been prematurely entered, and at the same time a tender of issues was made and filed in behalf of defendant.
    On the 13th of December appellee filed two separate answers to the motions,— neither of which were sworn to,— and the answer relating to the promises of Flint, set out in appellant’s motion for a new trial, was signed alone by Anderson, and was upon “information and belief,” and not sworn to.
    On the same date appellee filed a number of special exceptions calling in question the sufficiency of appellant’s motions. The court sustained the exceptions to one of the motions of appellant, and •overruled the other motion, from which orders this appeal was prosecuted.
    
      Jones & Kendall and A. M. Jackson, Jr., for appellant,
    cited, on their proposition that it was error to overrule the motion to set aside the default, Spencer v. Kinnard, 12 Tex., 187.
    
      Anderson & Flint, for appellee.
   Willie, Chief Justice.

Our Revised Statutes provide that, when a plaintiff in an action for the trial of the right of property appears, and the defendant fails to appear, or neglects or refuses to join issue under the direction of the court within the time prescribed for pleading, the plaintiff shall have judgment by default as in other cases. Art. 4385. The result of this provision is to give to an appearance by the defendant all the effect of a plea in an ordinary case in preventing a judgment by default until such time as he shall refuse to join issue under the direction of the court.

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. The appearance may be either in person or by attorney, and its effect continues until it is withdrawn or set aside, or the defendant fails to join issue when one is directed by the court.

In this case, after the appearance of both parties had been regularly entered, and before any issue had been directed by the court, a judgment by default was entered against the defendant. The only reason given for this in the record is because the defendant’s attorneys had retired from the defense of the cause. It is not shown that they "withdrew the appearance, or that the court set it aside at their request. It is contended, however, that by force of their abandonment, the appearance which they had previously entered for their clients was set aside, and availed the defendant no further. We fail to see the force of this idea. The original appearance, as we have seen, could have been made without the aid of an attorney, and certainly its continuance depended in no wise upon the continued representation of the defendant’s interests by any particular attorney or by any attorney at all. Moreover, the retirement of counsel from the prosecution or defense of a cause does not set aside all steps, and cancel all action previously taken by them in its management. Their client is still entitled to the benefit of all pleadings and other papers, or entries made by them.

It may be true that, with leave of the court, an attorney, so long as he still represents one of the parties, though upon the eve of abandoning a cause, may withdraw an appearance made by him or pleas filed in its defense, and leave his client to the mercy of his adversary. The court may, probably, in such case presume that he had authority to that effect, and leave him and his client to settle the damages, if any, resulting from his desertion. Henck v. Todhunter, 7 Harr. & J., 275.

[Opinion delivered June 24, 1884.]

But the intent to do so must clearly appear, and the record should positively show that the pleadings or entries or other proceedings were withdrawn, or they will still remain in the cause, and have the same effect upon it as if the party for whom they had been filed were still represented by an attorney. We think the abandonment by the attorneys of the defense of the present suit merely left the claimant without counsel to represent him, but did not make it the proper subject of a judgment by default.

But if the judgment had been properly rendered originally it should have been set aside upon the motion for that purpose filed by the appellant. It was clearly shown that one of the attorneys for the appellee had promised him on the day before the judgment by default was entered, that he would notify him before taking any action in the case. It also clearly appears from the facts recited in the motion that this promise was made in view of the fact that the counsel previously employed in the defense had signified their determination not to appear in it any longer. They had been employed by the claimants, who seem to have deserted the cause and left their surety, the appellant, to provide as best he could for its defense. The favor extended to Jackson was intended to give him an opportunity to provide counsel in case they should be needed in the further defense of the suit. It was not fulfilled by a notice given to Jackson in so short a time before the judgment was taken that lie could not, after receiving the notice, reach the court-house in time to prevent its being entered up. It may be true that the attorney taking the judgment did not know of the promise made by his associate and partner, and hence the apparent breach of the agreement. But the appellant had every reason to suppose that the agreement would be made known to the other attorney, or if not, that the one giving the assurance would see that it was fully complied with. He certainly cannot be made to suffer for the default of the party upon whose promise he relied, by reason of which he was led into a seeming neglect of his cause. The facts set out in the motion are verified by affidavit and are not contradicted in the same manner by the appellee. Hence they must be treated as true; and so considering them, we think they showed sufficient cause for setting aside the judgment by default, and that the court erred in permitting it to stand. For which error of the court the judgment is reversed and the cause remanded.

Reversed and Remanded.  