Martel v. Hernsheim
| Decision Date | 01 January 1852 |
| Citation | 9 Tex. 294 |
| Parties | MARTEL v. HERNSHEIM. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where the Supreme Court affirmed a judgment in 1849, and in 1852 it was made to appear to the satisfaction of the court that at the time of the affirmance the appellee was dead, the court vacated and annulled the judgment of affirmance, revoked the mandate, and continued the case, as on suggestion of the death of the appellee, for want of parties. (Note 49.)
Appeal from Fayette. See 5 Tex. R., 205.
Burns, for appellant.
In this case at the December Term, 1849, the judgment of the District Court of Fayette county was affirmed against the appellant and his securities in his appeal bond, which was certified to the District Court for its observance. It is now, at this term, made to appear fully to the satisfaction of this court that at the time of the affirmance of the judgment the appellee was dead; it is therefore ordered that the said judgment of this court in this case of the December Term, 1849, be and the same is hereby annulled and vacated; that the suit be reinstated on the docket of this court, and be continued on the suggestion of the death of the appellee for want of parties; and it is further ordered that the mandate heretofore issued from this court to the District Court of Fayette county be and the same is revoked.
Ordered accordingly.
NOTE 49.--Where the death of the plaintiff is suggested by his attorney as cause for not proceeding to final judgment such suggestion may be contested by the defendant, and it would seem that the trial should be by the court; and if it be found in the negative and the suit be dismissed, but it afterward appear that the plaintiff was dead, the cause will be reinstated on motion at the next term. (Armstrong v. Nixon, 16 T., 610.) When, after suit is brought, there is a change in the representative character of the defendant, so that the judgment against the defendant is erroneous in fact, it is not void, but simply voidable, as in the analogous cases of judgment 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. (Moke and Brother v. Brackett, 28 T., 443.) A judgment against a deceased defendant is not void, but only...
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