The Western Union Telegraph Company v. Ely Walker, 86 Tex. 72

STAYTON, Chief Justice. This cause comes before us upon certificate of dissent, and presents facts substantially as follows: Ely Walker brought an action against the Western Union Telegraph Company, a nonresident corporation, to recover damages for failure to deliver a message, and secured a judgment.

The corporation employed counsel to represent it until the final termination of the cause, and paid the fee demanded, and counsel thus employed tried the same in the District Court, perfected appeal from the judgment, and received the transcript in time to have it filed in the Court of Civil Appeals within the time prescribed by law, but failed to do so; whereupon the plaintiff asked affirmance of the judgment on certificate, when the corporation, having employed other counsel, obtained the transcript and asked leave to file it, which the court refused, and thereupon affirmed the judgment on certificate.

The application to file the transcript shows with all reasonable certainty that counsel employed by the corporation were never discharged, and that its officers did not know that they were not prosecuting this appeal until after the certificate for affirmance was filed; but it further shows, that counsel believed that their services were no longer desired in the cause, and for this reason ceased to represent the corporation; but there is nothing in the correspondence between client and attorney which, to us, seems sufficient to show intention on the part of the corporation to dismiss counsel in the cause or to justify the belief that its officers knew that counsel had, in effect, withdrawn.

Delivered October 12, 1893. Under this state of facts, the majority of the Court of Civil Appeals held that no sufficient reason was shown for the failure to file the transcript, while the dissenting judge held to the contrary.

The general rule is, that fault or negligence of counsel is deemed that of the client, and will not furnish sufficient ground for relief, unless the adverse party be in some way connected with or party to it; but it seems to us that this rule should not be enforced in cases like the present, and that all courts, while the matter is in fieri, should protect a litigant from injury that might result from such mistake of fact as counsel for appellant were evidently laboring under, and especially so when no legal injury could result to the adverse party from such a course.

If the judgment had been affirmed on certificate without resistance or éffort to file the transcript, and appellant was seeking to set that judgment aside on the grounds now urged, a stronger case would be presented for the application of the rule on which the court doubtless acted; but even in that case we are of opinion, that under the statute permitting such judgments to be set aside, the facts shown would have authorized the court to set aside the judgment of affirmance on certificate. As said in Chambers v.

Fisk, 20 Texas, 343, “ The object of the statute is to enable the court to relieve any one who, by accident, mistake, or misfortune, has failed to file the transcript. But in administering this relief, it is the duty of the court to see, so far as practicable, that it shall result in no injury to the appellees.

This motion having been made so promptly, and before a judgment had been asked upon the certificate, it can not be seen that the lapse of a few days will operate materially to the prejudice of appellee. * * * Appellant has been actuated by a bona fide intention of bringing the cause into this court without delay; that but a few days delay have occurred, and that appellee’s rights have not suffered by it.” And it was held that leave to file the transcript should have been given, although the failure to file it within the time prescribed by statute was caused by the mistake of himself, through his attorney", as to the time when the district would be called in this court.” The judgment of the Court of Civil Appeals affirming the judgment on certificate should be set aside, and appellant be permitted to file its transcript, after which the cause on appeal should be heard and decided on its merits; and this opinion will be certified to the Court of Civil Appeals for observance.