Gibson v. Hale

• Decision Date: 24 October 1882
• Docket Number: Case No. 3455.
• Citation: 57 Tex. 405
• Parties: D. H. GIBSON v. V. W. HALE, ADM'R.
• Court: Texas Supreme Court

57 Tex. 405

D. H. GIBSON

v.V. W. HALE, ADM'R.

Case No. 3455.

Supreme Court of Texas.

Oct. 24, 1882.

ERROR from Lamar. Tried in 1876 before the Hon. John C. Easton.

The opinion states the case.

Wright & McDonald and Maxey, Lightfoot & Denton, for plaintiff in error.-- … Certainly nothing could be more unfounded than the proposition that the action of the judge was res judicata as to the whole claim. The cardinal feature of res judicata is identity of subject matter or cause of action. Freeman on Judgments, sec. 242. The judge did not pass on the rejected portion of the account; he had no authority to pass on it. Id., sec. 249. A claim against a decedent cannot be presented in the first instance to the judge; it must first be presented to the administrator for allowance; if he rejects it in toto, it can never go to the judge, but the claimant must bring his suit to establish it. If the administrator allows in toto, the claim goes to the judge, who can approve in toto, partially, or disapprove altogether. If the administrator allow a portion of the account and reject the balance, as in the case at bar, and the claimant go to the judge, what is the extent of his power? The question almost answers itself. It is simply to approve the allowance for the amount thereof, or any portion, or to disapprove it altogether. Does he pass on the rejected portion of the account? Can he pass on it? Can he take any cognizance whatever of it? If not, then it is absurd to say that his action in approving the allowed portion of the account, over which alone he had any jurisdiction, is res judicata as to the rejected portion. The whole doctrine of res judicata will be found fully and most ably discussed by Mr. Freeman in his work on Judgments, under the head of Estoppel. We refer the court specially to sections 249, 256, 257, 259, 260, 268 and 269.

2. We differ widely with counsel for defendant in error in the proper construction to be placed on the law regulating the manner of having claims allowed and approved. Now the statute of 1848 (Pasch. Dig., art. 1311) expressly directs the claimant, when any part of his claim has been allowed by the administrator, to present it so allowed to the chief justice for approval, and he is then authorized to receive payment for the amount so allowed and approved, and to bring his suit to establish the remainder. Whilst the law under which the proceedings in this case took place (Probate Law of 1870, secs. 176 to 206, inclusive) is not so specific on this point as the law of 1848, just cited, still there is no conflict between them, and the law of 1870 will not bear any other construction than that which harmonizes with the plain and unmistakable import of the law of 1848, in which no room is left for construction.

As authority for sustaining the action of the court below, the counsel for defendant in error rely especially on section 191 of the probate law of 1870, which we transcribe in full:

“Article 191. When a claim, or part thereof, has been rejected, the claimant, if he do not submit thereto, shall institute suit thereon within ninety days after its rejection by the executor or administrator, or the same shall be barred.” The article quoted contains two separate, distinct propositions thrown together in the same sentence. One proposition is: “When a claim has been rejected, the claimant,” etc.; the other is: “When part of a claim has been rejected, the claimant, if he do not submit thereto,” etc. So that the submission spoken of does not refer to his acceptance of the part allowed, but solely to the rejection of the whole or a part of his claim. If a portion of the claim being undisputed, is allowed, why litigate about this part of it? What reason is there that the administrator should not relieve the estate of the undisputed portion of the account by paying it, and thereby stopping the interest, and then resist the balance if he so desires? No reason can be given, either on principle or authority, why the judgment of the court below should be sustained….

E. L. Dahoney and Hale & Scott, for defendants in error.

STAYTON, ASSOCIATE JUSTICE.

The cause of action, and question involved in this cause, is thus stated by plaintiff in error in his brief:

“The only question in this case, and the one on which it was decided in the court below, is this: The plaintiff Gibson had an account against the estate of Jacob F. McCarty, deceased, for $1,544.07, which, after proper authentication, he presented to McCarty's administrator for allowance. The administrator allowed the account to the extent of $196, and rejected it as to the balance; on this partial allowance Gibson procured the approval of the judge, and the administrator soon thereafter paid him the amount. Gibson then (and within ninety days from the date of rejection) brought this suit to establish that portion of his account which had been rejected, and the facts as here stated are averred in the petition. To this petition the defendant filed a general demurrer, which the court...