Bissell v. City of Lavaca
| Decision Date | 01 January 1851 |
| Citation | 6 Tex. 54 |
| Parties | BISSELL v. THE CITY OF LAVACA. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where after a suggestion was made upon the record that the plaintiff was dead, which was not controverted, the cause proceeded to judgment upon the merits, from which there was an appeal: Held, That all the proceedings subsequent to the suggestion of the death of the plaintiff were null, and that the appeal should be dismissed, although there was no assignment of error in that particular. (Note 9.)
The act of 1852, which requires errors to be assigned below, and provides that all errors not assigned shall be considered as waived, does not refer to errors for which the appeal itself should be dismissed.
Appeal from Calhoun. In this case it appears from the record that at the Fall Term, 1849, the plaintiff's counsel suggested the death of the plaintiff, and had the cause continued. At the next term of the court, without making parties, the cause was tried, and verdict and judgment for the defendant, from which the plaintiff appealed. The appeal bond was signed by William Bissell for Theodore Bissell referring to a power of attorney of a date anterior to the suggestion on the record of the death of the plaintiff. There was no assignment of error on account of the want of proper parties to the judgment.
A. S Cunningham and G. W. Paschal, for appellant.
A. H. Phillips, for appellee.
The suggestion of the death of the plaintiff by the counsel who represented him in the suit, and the suggestion not being traversed by the defendant, the common-law effect would have been an abatement of the suit. By our statute it could have been revived in the name of his representatives, and the usual order is to continue for the purpose of making parties. If, however, parties should not be made, the suit abates, because it cannot be conducted without parties. The judgment rendered in this case before parties had been made is a nullity, as were all the proceedings subsequent to the suggestion of the plaintiff's death. The appeal is therefore dismissed.
Ordered accordingly.
NOTE 9.--By analogy with this case it was held that where a case is remanded by the Supreme Court for a new trial, and an appeal is taken after the second trial, the transcript should contain the mandate, otherwise the proceedings subsequent to the first judgment would appear to be without authority. (McAlpin v. Bennet, 21 T., 535.)
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