O'Neal v. Tisdale

• Decision Date: 01 January 1854
• Citation: 12 Tex. 40
• Parties: O'NEAL v. TISDALE, ADM'R.
• Court: Texas Supreme Court

12 Tex. 40

O'NEAL

v.TISDALE, ADM'R.

Supreme Court of Texas.

1854.

Where a person is offered to be made a party plaintiff in the place of the original party, who had died, or who had brought suit in a fiduciary capacity and resigned the trust, objection to the new party may be made orally.

An order of the Probate Court that a person be “and is hereby appointed administrator of the estate of the deceased, and that letters issue to him accordingly by his giving bond in the sum of fourteen thousand dollars,” is not sufficient evidence of his being administrator, to entitle him to be made a party to a suit as such, without proof of his having given the bond and security.

Error from Harrison.

C. M. Adams, for defendant in error. There was no error in permitting the withdrawal of announcement for trial, and the suggestion of the death of the original petitioner, and making the administrator de bonis non a party. If the defendant was really surprised by such suggestions and wished to controvert the capacity of the petitioner to prosecute the suit, he might have asked for a continuance and leave to amend, denying by proper plea the right of the party to appear on the record. He chose, however, to go to the jury with only the general issue.

There was no error in permitting the petitioner to read the record of the County Court, showing the appointment of the plaintiff as administrator de bonis non. This proof was not necessary. The right of the petitioner to sue was not denied. It can only be brought into question by plea in abatement under oath. (1 Tex. R., The Governor v. Aulanier; Coles v. Perry, 7 Id., 171.)

LIPSCOMB, J.

This suit was brought by Tabitha Woodley, as administratrix of William Woodley, against the plaintiff in error, on a note executed by the plaintiff in error, and payable to her as administratrix. Whilst the suit was pending, the plaintiff died, and her death was suggested, and on the production of the Record Book of the Probate Court, and reading therefrom the following order, i. e.: “Whereas Wingate H. Woodley, having filed his application in Court to resign his trust as admininistrator de bonis non, and whereas at this Term of the Court an order was entered discharging him from such administration, and whereas Thomas H. Tisdale filed his application for letters of administration de bonis non upon said estate, and notice of the same having been given as required by law, and no objection being filed, it is ordered by the Court that the said Thomas H. Tisdale be and he is hereby...