Brother v. Brackett

• Decision Date: 31 October 1866
• Citation: 28 Tex. 443
• Parties: MOKE & BROTHER v. EMILY W. BRACKETT ET AL
• Court: Texas Supreme Court

28 Tex. 443

MOKE & BROTHER

v.EMILY W. BRACKETT ET AL

Supreme Court of Texas.

October, 1866.

The case of Tucker v. Brackett, ante, 336, referred to, and the rulings approved relative to the liability of the surviving wife for community debts, and the effect thereon of the grant of administration on the estate of her deceased husband. Pas. Dig. arts. 4646 to 4653, notes 1053 to 1055.

Judgment on a community liability was recovered in the district court against a surviving wife, who had filed in the county court an inventory of the community property, but had not obtained letters of administration on her husband's estate; which judgment she took to the supreme court on writ of error. Pending the cause on error in the supreme court, she was appointed administratrix of her husband's estate, but no suggestion of this change in her representative capacity was made to the supreme court, and the judgment was there affirmed against her and her surety on the bond in error: Held, that the judgment of affirmance, though correct, when tested by the record on which it was rendered, was erroneous in fact, by reason of the change in the representative character of the party against whom it was rendered; that though thus erroneous it was not void, but simply voidable, as in the analogous cases of judgments rendered in favor of or against a feme covert appearing on the record as a feme sole, or in favor of or against a dead man, when the fact of marriage or death was not apparent on the record. The proper mode of correcting an error of this character is by a proceeding in the nature of a writ of error coram nobis, in the court where the error was committed. The case of Martel v. Hernsheim, 9 Tex. 294, referred to as illustrative of the correct practice in such cases. 5 Tex. 289;18 Tex. 753;21 Tex. 154;24 Tex. 468;post, 732, 755.

Subsequent to the affirmance of the judgment as above indicated, the surviving wife and then administratrix, and her surety on the writ of error bond, instituted suit in the district court to enjoin execution of said judgment and for general relief. The district court perpetuated the injunction, but decreed that the judgment be certified to the county court for payment in due course of administration: Held, that the district court, having obtained full jurisdiction at the instance of the only parties who could complain of the error committed in the affirmance of the judgment, did not err in enforcing equity against them by establishing the judgment as a claim against the estate, thus substantially correcting the error in the affirmance of the judgment, and placing all parties in the position they would have occupied if no error had been committed. But held, further, that the decree of the district court, though correct in enjoining the judgment as against the surviving wife, was erroneous in also enjoining it against her surety on the writ of error bond, thereby operating to discharge him from his liability; that as to him the injunction should have been dissolved, and judgment should also have been rendered against him and the sureties on the injunction bond, with an award of execution thereon. For which errors the judgment rendered below is reversed and reformed in this court.

APPEAL from Bexar. The case was tried before Hon. THOMAS J. DEVINE, one of the district judges.

This suit was commenced by the appellees, Emily W. Brackett and Samuel S. Smith, on the 4th of June, 1860, to enjoin execution of a judgment in favor of appellants, originally rendered against Emily W. Brackett, as surviving wife of O. B. Brackett, deceased, for some $180, which judgment was affirmed on error in the supreme court against Mrs. Brackett and Smith, her surety on the writ of error bond. While that case was pending in the supreme court, Mrs. Brackett was appointed administratrix of the estate of her deceased husband, but this fact was not brought to the knowledge of the supreme court, whose judgment of affirmance was consequently rendered without reference to it.

Execution having been issued upon the judgment as affirmed, and being levied on property of Smith, he and Mrs. Brackett brought the present suit for an injunction, setting forth the grant of administration to Mrs. Brackett on her husband's estate, and other matters not necessary to particularize.

At the spring term, 1861, the cause was submitted to the court without a jury, and a decree was rendered perpetuating the injunction, and directing the judgment enjoined to be certified to the county court for payment, in due course of the administration of O. B. Brackett's estate. The defendants below, E. & L. Moke, moved to amend the decree, so as to dissolve the injunction and render judgment in their favor against the plaintiffs and their sureties on the injunction bond. This motion was overruled, and the defendants appealed.

Wilcox & Leigh, for the appellants.

No brief for the appellees.

COKE, J.

After the death of O. B. Brackett and the filing of the inventory and appraisement of the community property in the county court, the appellee, E. W. Brackett, became the representative of the community, and liable as such to be sued for the community debts. O. & W. Dig. 812, 816.

Upon certain contingencies, named in article 814, the county court was authorized to...