
    Fowler and another v. Morrill.
    'Whero the plaintiff alleged that lie, as an attorney-at-law, had obtained a judgment in favor of Fowler against Poor, for which Fowler had promised to pay him as much as his services were worth, and that said sorvices were worth $100, but that said Fowler, combining and confederating with one Shelton to dofraud plaintiff of his just rights, had made a pretended sale of the said judgment to Shelton, and that Shelton had received in part satisfaction of said judgment a certain note made by one Trimbl'e in consideration of the purchase-money of a tract of land of Poor, upon which a lien for the satisfaction of the saidjudgmenbexisted; that Fowler was insolvent; that plaintiff was remediless unless his lien should be enforced. lie prayed for process against Fowler, Shelton,and Trimble, and for judgment against Fowler, and that Trimble be ordered to pay the same out of the debt due by Trimble to Shelton: field, That a demurrer to the petition by Fowler was properly overruled.
    Where there was no final judgment against one of several defendants the writ of error as to him was dismissed, and it was ordered that a judgment nunc pro tunc should be entered against him in the court below.
    Whero an attorney-at-law undertakes to represent a party in a suit the prima facie presumption is in favor of his authority, and l\is authority cannot be questioned for the first time oil appeal or error; but where an act purports to have been done by an agent or attorney, as the waiver of the service of process, and it does not appear that the agent or attornov was an atrorney-at-law, there is no presumption of authority, and the wantof authority may be assigned for error by the party thus represented.
    Where a party occupies the position of a stakeholder, and by his answer submits to such judgment as the court may render in the case, he need nob join in an appeal or writ of error; but tiie court will protect his rights.
    The costs do nob necessarily follow the judgment of the Supreme Court, but may be adjusted and apportioned according to the equity of the case.
    Where a judgment by default was reversed on the ground that it did not appear that the person purporting to waive the t>ervice of process had authority, tiie Supreme Court ordered that the defendant have leave to appear and plead.
    Error irom Bed River. Tiie plaintiff, Amos Morrill, filed liis petition .against tiie defendants, Jolm H. Eowler and Jesse Shelton, tiie plaintiffs in error, and William Trimble, who did not join in the writ of error.
    The plaintiff averred that as attorney-at-law lie recovered a judgment in favor of the defendant, John H. Eowler, against Ira S. Poor and Eliza S. Poor, for which the said Eowler promised to pay him as much as he reasonably deserved to llave, and that the sum amounted (being ten per cent, of the judgment) to three hundred and six dollars and sixty-one cents, payable when the judgment should be satisfied; that said judgment operated as a lien upon the real estate of the said Ira and Eliza; that the defendant Eowler, combining and confederating witlx the defendant Shelton to defraud plaintiff of his just rights, had made a pretended sale, the former to the latter, of the said judgment, and that Shelton purchased the said judgment with a knowledge that tiio plaintiff’s lien upon the same as an attorney was unpaid, and that the said Shelton had received in part satisfaction of the said judgment a certain note made by the defendant Trimble in consideration of the purchase-money of a tract of land of the said Ira S. Poor, upon which a lien for the satisfaction of the said j udgment existed; that Fowler was insolvent, and that the plaintiff will he remediless unless his lien be enforced, and that his claim ought to be paid out of the debt due by the said Trimble to the said Shelton. The plaintiff prayed for judgment against Fowler, and that Trimble be ordered to pay the same.
    This petition'was filed on the 17th October, 1850, and on the same day there was indorsed the following purported acknowledgment of service by Shelton, viz:
    “ Service acknowledged 17th October, 1SD0. u Jesse SheltoN
    by T. C. Forbes.”
    The defendants Fowler and Trimble were duly cited. The former appeared and filed a demurrer, and for further answer pleaded payment, the statute of limitations, and set off. The latter admitted the truth of the allegation of the petition, and that he owed the note to Shelton as described, and that he was willing to pay to whomsoever the court shall decree, and prayed that he migiit be protected in the said payment.
    On the trial, the defendant Shelton having failed to answer the petition, the matters therein were taken as confessed as to him. The demurrer of the defendant Fowler was overruled; and the issue between the plaintiff and the defendant Fowler having been submitted to a jury, a verdict in the sum of one hundred and ninety-six dollars was found for the plaintiff, and it was decreed that Hie said Trimble, out of the moneys due from him to the said Jesse Shelton, pay the said sum of one hundred and ninety-six dollars, with interest, to the said plaintiff, and that the said Shelton be forever enjoined from the collection of the said sum and interest from the said Trimble, and that the plaintiff do recover of Fowler his costs, &e.
    The defendant Fowler made a motion for a new trial, which, on the remission by the plaintiff of the excess of his judgment over one hundred and fifty dollars, was overruled.
    The defendants Fowler and Shelton sued out a writ of error and assigned as grounds for the reversal of the judgment—
    1st. That the court erred in overruling Fowler’s demurrer.
    2d. In not granting a new trial.
    3d. 'Hiere was judgment against the defendant Shelton when he had not been cited.
    4th. The record does not show the authority of Forbes to acknowledge service for Shelton.
    5th. That the claim of plaintiff was barred by the statute of limitations.
    /. T. Mills, for plaintiffs in error.
    
      A. Morrill, for defendant in error.
   Hemphill, Ch. J.

The point first presented is on the demurrer of the defendant Fowler. This was properly .overruled. The petition states the indebtedness of the defendant with sufficient fullness and precision, and avers facts inconsistent with snob control over the judgment as to have enabled him to collect his fee upon execution. The fact that the debt from Trimble tO' Shelton was the only remaining fund upon which his lien could he enforced might have been stated more, explicitly; but upon considering the whole petition tile averments sufficiently indicate not only the indebtedness of the defendant Fowler, hut that the mode in which "the remedy is sought is not unnecessarily harassing and oppressive upon the defendants.

Nor was there any error in the refusal to grant a new trial. The verdict was objectionable for tile allowance of interest, but this was cured by the remittitur of the plaintiff, anti the ground upon which the motion shonlrl have been sustained was taken away. These views on this second assignment are predicated on the supposition that there was final judgment as against the defendant Fowler. But such was not the fact. Tlie issue between him and tlie plaintiff was submitted to the jury, and their verdict returned, but no corresponding- judgment was entered. And although a motion for a new trial may be made before the entry of j udgmen t, yet without final judgment there was no basis for a writ of error. There was a judgment against Fowler for costs but not for the debt, and the writ of error as to him must therefore be dismissed.

The third assignment is, that the judgmeut against Shelton is erroneous for the want of citation or notice.

Tlie statute authorizes a party, his agent or attorney, to waive the necessity of issuing- or the service of process, and to accept service thereof, provided such-waiver or acceptance be made in writing and signed by such party, his agent or attorney, and filed among the papers of the cause. (Art. 678, Dig.)

In tiiis case the service is acknowledged for Shelton by T. 0. Forbes; but whether Forbes be tlie agent or attorney in fact or attorney-at-law representing Shelton does not appeal-. Had this acknowledgment been by an attorney-at-law there would be a prima facia presumption in favor of bis having sufficient authority to perform tlie act. Tlie general license of an attorney is a species of guarantee to tlie public and to suitors that lie is entitled to confidence, and the dignity of the. profession and the convenient administration of justice require that presumptions in favor of his authority should bo indulged. (1 La. Annual Hep., 897.) But it does not appear that Forbes is an attorney-at-law ; it is not stated that lie is an attorney in fact. There is no evidence of his authority or of its character. It was not disputed or brought to the attention of the District Court, nor could it have been contested by tlie defendant Shelton, as, independent of the acknowledgment in question, lie had no notice of the suit nor did he appear in tlie progress of the cause, and he is not concluded by the acts of unauthorized agents which he could not control and lias had no opportunity to disavow.

It might be questioned whether some proceeding should not have been instituted in the court below to set aside and vacate tlie judgment as to Shelton. The fact of authority or not in Forbes could in that tribunal be conveniently investigated, and tlie appropriate judgment or order entered or made without the delay and expense of an appeal. There are cases in which the error could with equal propriety, though not perhaps with tlie same facility, be corrected in either court. In confessions of judgment by attorney the warrant of attorney must be filed, and where this is not done the judgment is fatally, and for an error apparent upon the record, defeclive. Ho dispute can arise in relation to the fact of authority. But tlie power of an agent or attorney in tlie acknowledgment of service is not required to he filed; and the fact of its existence is to be ascertained by presumptions of evidence aliunde and not by-inspection ; and it would seem that such matter would come more properly in the first place within the cognizance of the District Court.

But tlie point as to the authority of Forbes lias not been fully argued by tlie plaintiff in error and has not been" alluded to by (lie defendant., and we do not intend to enter into a full discussion of tlie questions which might arise in the-consideration of the proposition contained in tlie assignment. (2 Tex. R., 582; 6 Johns. R., 295.) For the discussion of this case, under the circumstances, it is sufficient to say that Forbes does not appear to be an attorney-at-law, and his authority cannot prima facia be presumed; nor is bis acknowledgment affirmed by the subsequent appearance of the defendant, nor is tlio latter' estopped by failing to disaffirm tlie act of Forbes, as no opportunity for that purpose lias been presented.

Under this state of facts the judgment as against. Shelton must he regarded as entered without due citation or notice, and must consequently be set aside. The same order must be made in reference to the judgment against Trimble. He cannot be required to make payment to tlie defendant in error unless

CO protected against the right of Shelton to enforce payment of the same debt the second time.

The point as to the statute of limitations was waived by the plaintiffs in error, and does not therefore require any notice.

It is ordered, adjudged, and decreed that the writ of error as to the plaintiff Fowler be dismissed, and that a judgment nunc pro tuno be entered for the sum of one hundred and fifty dollars in the court below against the said Fowler in favor of the defendant in error; and it is further ordered, adjudged, and decreed that the judgment in the District Court be set aside, and that the ■defendant Shelton have leave to appear and plead as he may be advised; and it is further ordered that the costs of this court be apportioned, and that one-half be paid by the plaintiff in error, John H. Fowler, and the other half by the defendant in error.  