Bennett's Ex'Ors v. Spillars
| Decision Date | 01 January 1852 |
| Citation | 7 Tex. 600 |
| Parties | BENNETT'S EX'ORS v. SPILLARS. |
| Court | Texas Supreme Court |
Where there did not appear to be any notice of appeal or writ of error, but briefs were filed by both parties, the court said: As it may save the parties from incurring the unnecessary expense of again bringing up the cause for review, we deem it not improper to express our convictions that there is no error in the judgment.
Where one of two joint defendants died pending suit, the executors of the deceased defendant were made parties, and the judgment of the court was rendered against all the defendants jointly, with an order that execution should issue against the surviving defendant, and that the executors should pay the judgment in the due course of administration: Held, There was no error.
It is no objection that the same judgment cannot be rendered against all the defendants. The court, in the exercise of its general powers, and under the 115th section of the act of 1846, has the power to enter such judgment as will conform to the pleadings and the nature of the case.
There does not appear, from the record, to have been any notice of appeal or writ of error; and as these are essential to the exercise of the revisory jurisdiction, the case must, for the want of such appellate process, be dismissed from the docket. That such process exists, there is little doubt; otherwise there would have been no assignment of errors, nor would the parties have appeared by briefs.
The case has been argued by brief; and as it may save the parties from incurring the necessary expense of again bringing up the cause for review, we deem it not improper to express our convictions that there is no error in the judgment.
The facts of the case are briefly these: Spillars, the plaintiff, sued one Noel Mixon and Joseph L. Bennett on a joint note. Pending suit Bennett died, and his executors, Davis and J. S. Bennett, being made parties defendants, jointly with the survivor, Mixon, judgment was rendered against all the defendants jointly, with the order that execution should issue against Mixon, and that the executors should pay the judgment in the due course of administration.
It is contended that the suit should have been discontinued as against the deceased joint obligor, and that a joint judgment against the survivor and the representatives of the deceased is erroneous. This would be entirely sound, if the courts of this State were restricted to the exercise of common-law powers exclusively, and controlled absolutely by such provisions of statutes as were designed to prevent the abatement of suits at common...
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Western Union Tel. Co. v. O'Keefe
...that the notice is jurisdictional, and that it cannot be waived. Manlove v. Kinney, Dall. Dig. 493; Burr v. Lewis, 6 Tex. 76; Bennett v. Spillars, 7 Tex. 600; Hughes v. State, 33 Tex. 683; Thomas v. Childs, 36 Tex. 148; Holek v. Varona, 63 Tex. 65; Nickerson v. Nickerson, 5 Tex. Law Rev. 52......
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Beversdorff v. Dienger
...v. Kelly, the following cases are thereupon cited in the opinion: Manlove v. Kinney, Dallam, Dig. 493; Burr v. Lewis, 6 Tex. 76; Bennett v. Spillars, 7 Tex. 600; Hughes v. State, 33 Tex. 683; Thomas v. Childs, 36 Tex. 148; Holek v. Varona, 63 Tex. 65; Nickerson v. Nickerson, 5 Tex. Law Rev.......
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