Egery v. Power
| Citation | 38 Tex. 373 |
| Parties | C. W. EGERY ET AL. v. JAMES POWER. |
| Decision Date | 01 January 1873 |
| Court | Supreme Court of Texas |
1. This court rendered judgment March 7, 1855, in an action of trespass to try title, after the death of the original appellee who was plaintiff below, and the executrix of whose will was made appellee in his stead, but without making the heirs parties: Held, that this court had jurisdiction.
2. Though a plaintiff may become appellee in this court, he is here a defendant only as to the alleged errors of the lower court; and if he dies pending an appeal, his heirs are not necessary parties, but the case may proceed to judgment on making his executor a party.
3. Quære: Whether, on motion of parties representing themselves to be the heirs of one who died pending an appeal to this court, and who here ask to set aside a judgment of this court because they were not made parties, this court has jurisdiction to inquire dehors the record, and determine the question of heirship?
MOTION made in May, 1872, to set aside a judgment of this court rendered in March, 1855.
The judgment was rendered in an action of trespass to try title to land, brought in Refugio county by James Power, in 1849, against Cyrus W. Egery, Joseph F. Smith and Henry Smith. By change of venue the case was removed to Jackson county, where it was tried September 30, 1851, and judgment rendered for the plaintiff, Power, from which the defendants appealed.
Pending the appeal James Power, the appellee, died; his death was suggested, and his widow, Tomasa Power, as executrix, was made a party appellee in his stead, without making the heirs parties. The cause was decided at the Galveston term of the supreme court, 1855. By this decision the title of Power was declared void, the judgment of the district court was reversed, and the cause remanded for further proceedings.
The plaintiffs, at the death of their ancestor, were minors, and by the will of their ancestor the estate was to remain in the possession of the executrix until all of his children became of lawful age, when it was to be distributed equally among them. On the youngest child attaining to the years of majority, the heirs prosecuted this motion to set aside the decision of the supreme court, and reinstate the case for trial.
C. A. Russell, Hancock & West, and Moore & Shelley, for the motion. Superior courts have at all times the power to declare judgments void where the record itself shows that such judgments were rendered without authority, or that the courts had not jurisdiction of the parties, or of the subject matter. Horan v. Wahrenberger, 9 Tex. 314;Elliott v. Piersol, 1 Pet. 328, 340;Voorhees v. Bank of United States, 10 Pet. 473;Williamson v. Berry, 8 How. 540; Moore v. Easely, 18 Ala. 619; Ex parte Crenshaw, 15 Pet. 123;Bank of United States v. Moss, 6 How. 31;Burr v. Lewis, 6 Tex. 76; also, 10 Yerg. 310; 9 Geo. 247; 12 Ill. 203; 15 Ala. 800; 20 Ohio, 344;Lytell v. Fenn, 3 McLean, 411; Ault v. Elliott, 2 Cranch, 372; Homans v. Coombs, Id. 681; Porter v. Marsteller, 1 Cranch, 129; Jackson v. Bank of United States, 5 Cranch, 1.
Under the common law a bill of review could be brought at any time within twenty years, to revise a judgment for errors apparent upon the record.
This court will entertain motions to set aside judgments that are void for want of jurisdiction, or for other cause, and will hear affidavits and other proofs in support of such motions. Hart v. Mills, 31 Tex. 313;Harris v. Hopson, 5 Tex. 529;Martel v. Hernshieme, 9 Tex. 294;Dial v. Rector, 12 Tex. 99;Chambers v. Hodges, 23 Tex, 110;Burr v. Lewis, 6 Tex. 76.
The judgment rendered by this court in this case, on the seventh day of March, 1855, was void for want of jurisdiction. 23 Tex. 110, 455;9 Id. 313.
“The jurisdiction of the court is the power given it by law to take cognizance of and try the case before it.” The State of Rhode Island v. The State of Massachusetts, 12 Pet. 717;United States v. Aredondo, 6 Pet. 709; Russell v. Mitchell, 25 Tex. 136; Comstock v. Crawford, 3 Wall. 347; 7 Wall. 694; Id. 306; 6 Id. 246;5 Id. 824; see, also, Flanagan v. Pierce, 27 Tex. 79;Andrews v. Beck, 23 Tex. 455;Cowan v. Mixon, 28 Tex. 230;Evans v. Pigg, 28 Tex. 586;Baker v. Chisholm, 3 Tex. 158;Thomas v. Jones, 10 Tex. 53;Withers v. Patterson, 27 Tex. 494;28 Tex. 230.
The law has given to the courts no power to decide upon the rights of parties, without such parties are before the court. and invoke its action. All parties whose interests are to be affected must be before the court. Ottenhouse v. Burleson, 11 Tex. 87;Teas v. Robinson, Id. 776;Mitchell v. De Witt, 20 Tex. 294;Allison v. Shilling, 27 Tex. 450;12 Tex. 99, before cited; see, also, Verden v. Colman, 1 Black, 472; Barbour, Parties, 293, 299; Broom, Parties, 108; Connelly v. Taylor, 2 Pet. 564.
The plaintiff brought suit upon a title from the Mexican government, and obtained a verdict and judgment of the district court establishing its validity. This judgment was sufficient assurance of title to vest the title in the plaintiff, without reference to the evidences upon which it was based. It constituted in itself a valid title to the land, until it was reversed or set aside. Fisher v. Miller, 20 Tex. 572;Voorhees v. Bank of the United States, 10 Pet. 473; Elliott v. Piersol, and other cases before cited; 2 Smith, Lead. Cas. 553.
The judgment is not vacated by an appeal where the appeal is in the nature of a writ of error; and the appellate court does not try the case de novo, but revises the case upon errors. Pow. App. Proc. 358, 371, 373.
The plaintiff, James Power, died pending the appeal in this court, and, upon his death, the title which had been vested in him by the judgment of the district court immediately vested in his heirs. Pas. Dig. art. 1373, and cases cited; Walker, Am. Law, 352; Bufford v. Holliman, 10 Tex. 560;Ansley v. Baker, 14 Tex. 607.
“The estate at the death of a party vests immediately in the heirs as the true and lawful owners.” Fisk v. Norvel, 9 Tex. 16. Upon the grant of letters testamentary or of administration, the estate passes from the heirs sub modo for the purposes of administration only. Patton v. Gregory, 21 Tex. 518.
The common law has been the rule of decision in this court since 1840, except so far as modified by statutory provisions. By the common law this suit would have abated at the death of a party. Alexander v. Barfield, 6 Tex. 402; 2 Tidd, Pr. 932; 3 Rob. Pr. 243, 288.
This rule of the common law was modified by act of May 12, 1846, regulating proceedings in the supreme court. Pas. Dig. art. 1573. The provisions of this act are as follows, to wit:
“When any person, plaintiff or defendant in any suit pending in the supreme court, shall die, it shall be lawful for the clerk, during the recess of the court, upon application by petition, to issue proper process to enable the court to proceed to final judgment in the name of the representative of such deceased person.”
The question then arises, who is the “representative” of a deceased person? Is it the heir, or the executor or administrator?
In all matters affecting the title to real estate which had descended to the heir, the heir was the representative of the deceased. Vide Webster, Dic., “Representative: one who stands in the place of another as heir, or in the right of succeeding to an estate of inheritance, or a crown.” Also, Burrill's Law Dic.: “The heirs, executors and administrators are compendiously styled the real and personal representatives of the deceased.” 2 Stephens, Com. 243; 2 Black. Com. 503; 1 Will. Ex'rs, 1851; Whart. Law Lex. art. Executor and Heir; also, Bouv. Law Dict. art. Executor.
The act of 1848, regulating proceedings in the probate courts provides, “that the rights, powers and duties of executors and administrators shall be governed by the principles of the common law where not otherwise provided.”
Nothing is contained in this act to give to executors or administrators power to litigate the titles of the deceased to real estate. They had no such power under the common law, and none was bestowed upon them by this act.
The heirs were necessary parties, and ought to have been made so before any adjudication was made upon the title. 31 Tex. 347;Ottenhouse v. Burleson, 11 Tex. 87;Teas v. Robinson, Id. 774;Thomas v. Jones, 10 Tex. 53; Blair v. Cisnero, 11 Tex. 41; Bouv. Law Dic. Abatement Pleading, ¶ 16; Barbour, Parties, 245, 320; 1 Dan. Ch. Pr. 185, 256, 260, 253; Douglass v. Massie, 16 Ohio, 271;Russell v. Clark, 7 Cranch, 69;4 Mass. 354;1 Id. 35;16 Id. 280;3 Id. 268;5 Id. 240;14 Id. 500;4 Id. 598;2 Id. 478;1 Pick. 157;3 Cow. 299; Shep. Touch. 472; MacNamarra, Nullities, 4.
From these authorities it follows that the judgment of the court rendered in the cause was void for want of jurisdiction of the parties in interest. 2 N. H. 191; 2 Smith, Lead. Cas. 553, Fisher v. Herndon; Paine, 55; 25 Miss. 513; 2 McLane, 511; 11 Ga. 453.
This court has authority, under its general powers as a superior court, to devise such modes, establish such rules and issue such process as may be found necessary to effect the objects of justice in a case brought properly before it. Tucker v. Anderson, 25 Tex. S. 155; Pas. Dig. art. 1578; Pas. Dig. note 182, page 57; Evans v. Pigg, 28 Tex. 586;11 Tex. 776;Boni Judicis est Amplaire--Broom, Leg. Max.; Barry v. Randolph, 3 Binn. 277;Vanatta v. Anderson, 3 Binn. 417, S. P.;10 Yerg. 310; 9 Geo. 247; 12 Ill. 203;20 Ohio, 345; 15 Ala. 800; 18 Ala. 619.
No brief for defendants in motion has reached the hands of the reporters.
This is a motion to set aside a judgment and decree of this court rendered in March, 1855, for the want of jurisdiction in this court of the parties in interest in the subject matter in litigation in said suit.
The judgment sought to be vacated by this motion originated in an action of trespass to try title to certain lands, brought by James Power against the defendants to this motion in ...
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