Laas v. Seidel

• Decision Date: 01 May 1902
• Citation: 67 S.W. 1015
• Parties: LAAS v. SEIDEL.
• Court: Texas Supreme Court

Page 1015

67 S.W. 1015

LAAS v. SEIDEL.

Supreme Court of Texas.

May 1, 1902.

Certified question from court of civil appeals of First supreme judicial district.

Action on a note by Adolph Seidel against E. C. Laas. A judgment in favor of plaintiff was reversed by the court of civil appeals (66 S. W. 871), which certified a question to the supreme court. Question answered.

W. C. Henderson and C. G. Krueger, for appellant. Searcy & Garrett and Jas. H. Shelburne, for appellee.

BROWN, J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and question:

"This suit was brought April 15, 1901, by Adolph Seidel to recover of E. C. Laas $300 out of a note for $500, alleged to have been by him due and payable to C. W. Laas, deceased, at his death. Seidel sues in behalf of his wife, Nellie, who is alleged to be the daughter of deceased. It is averred that deceased died testate on the 16th day of November, 1899; that his will was duly probated, and that, by its terms, Nellie, his daughter, was bequeathed the sum of $300, to be paid to her out of the note sued on; that the estate of deceased was solvent. The petition contains no allegation that no administration is pending on the estate and that none is necessary, nor any other allegation bringing it within any of the exceptions to the general rule that, in order for an heir or legatee to maintain a suit against a debtor of an estate, he must allege and prove that no administration is pending, none necessary, or some other facts entitling him to sue as heir or legatee. The petition contained all other necessary allegations. The pleadings are lengthy, and it is not deemed necessary to set them out at length. For the purposes of this certificate, the above statement of the substance of the petition is believed to be sufficient. E. C. Laas interposed a general demurrer and special exceptions to the petition, which were overruled, and, on trial, judgment was rendered against him for the amount sued for. The case is here on appeal by him, and is now pending on motion for rehearing; we, at a former day of this term, having reversed the judgment and remanded the cause chiefly because of the failure of plaintiff to allege no administration pending and none necessary. None of the special exceptions of appellant make the point last stated, but his general demurrer was presented and acted on.

"The question, the answer to which must control our action on the motion for rehearing, is, can the...