Elliott v. San Benito Bank & Trust Co., 10671.
| Decision Date | 28 February 1940 |
| Docket Number | No. 10671.,10671. |
| Citation | 137 S.W.2d 1070 |
| Parties | ELLIOTT et al. v. SAN BENITO BANK & TRUST CO. |
| Court | Texas Court of Appeals |
P. F. Dominy, of San Benito, for plaintiffs in error.
Charles C. Bowie, of San Benito, and W. H. Betts, of Hempstead, for defendant in error.
This is a suit brought by defendant in error, the San Benito Bank and Trust Company, against the heirs at law of F. M. Elliott, deceased, to subject property formerly owned by the deceased to the payment of a certain judgment held by the bank.
It appears that the original judgment against F. M. Elliott was rendered on March 3, 1928, and corrected on April 4, 1928. On April 6, 1928, an order of sale and execution was issued. On April 5, 1938, the bank brought this action. Trial was to the court, and in its judgment the trial court found that the bank had a valid judgment against F. M. Elliott, who died on July 16, 1935; that defendant Mrs. Ozoriah Schwartz Elliott was the surviving widow, and that defendants Jack Elliott and Mrs. Iva Entringer were the children, and only surviving heirs at law of F. M. Elliott, deceased.
The judgment decreed that the former judgment against F. M. Elliott be "revived" as against defendants insofar as they have any claim in and to the N.E. 1/4 of Section 45, Block 1, H. & T. C. Ry. Survey, Waller County, Texas, and that order of sale issue.
Jack Elliott brings the case here. The petition for writ of error was apparently made on behalf of all defendants below, but Jack Elliott alone executed a cost bond, consequently error proceedings on behalf of others than Jack Elliott will be dismissed for want of jurisdiction. Article 2265, Vernon's Tex.Civ.Statutes; Lyle v. McDowell, Tex.Civ.App., 116 S.W. 2d 1109.
Many of the contentions of plaintiff in error, Jack Elliott, relating to the validity of the original judgment, are fully answered in Elliott v. San Benito Bank & Trust Company, Tex.Civ.App., 133 S. W.2d 831. We hold that the filing of the waiver by F. M. Elliott precludes an attack upon the corrected judgment for the reasons stated by Judge Alexander in the opinion above mentioned. Further discussion of this feature of the case is unnecessary here.
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