Another v. Hubbell

• Decision Date: 01 January 1851
• Citation: Toliver v. Hubbell, 6 Tex. 166 (Tex. 1851)
• Parties: TOLIVER AND ANOTHER, ADM'RS, v. HUBBELL.
• Court: Texas Supreme Court

6 Tex. 166

TOLIVER AND ANOTHER, ADM'RS,

v.HUBBELL.

Supreme Court of Texas.

1851.

Where the Probate Court in 1845 ordered a claim to be paid in due course, and upon petition of the creditor, in 1849, for settlement and payment, ordered the claim to be paid after the payment of all claims presented and allowed within the year, from which order the administrators appealed, the District Court decreed that the claim should be paid in due course: Held, That the proceeding of 1849 was collateral to the judgment of 1845, and that in such a proceeding that judgment could not be impeached, and the judgment was affirmed. (Note 25.)

Appeal from Colorado. The appellee recovered a judgment in the District Court of Galveston county in May, 1843, against Hughes and Peters. Peters died and administration was taken out on his estate in Colorado county. The transcript of the judgment obtained in the District Court of Galveston was filed in the Probate Court of Colorado county, and an order was made by the jndge of the Probate Court on the 24th of November, 1845, that the judgment should be allowed against the estate of Peters, and that the administrators should pay the same in due order of administration; “to which the administrators filed their bill of exceptions.” On the 3d of February, 1849, Hubbell filed his petition in the Probate Court, alleging that the administrators of Peters, notwithstanding the order of the probate judge made in November, 1845, had not paid the said judgment, and praying that the administrators should be compelled to make a settlement with the Probate Court and compelled to pay the judgment to the petitioner. The administrators resisted this application, on the ground that the claim had never been presented to the administrators. But the Probate Court ordered them to make the settlement and to pay the judgment after the payment of all claims that had been presented and allowed within the year. From this judgment the administrators appealed to the District Court. In the District Court a jury was waived, and the court rendered its decree (October Term, 1850) to the effect that the claim was valid, and that the administrators should pay it in due course, as ordered by the judgment of the Probate Court of November 25, 1845. The administrators appealed. There was no statement of facts nor bill of exceptions.

The only error assigned was that the court erred in sustaining the judgment of the Probate Court that was rendered in November, 1845, because the judgment was barred by not...