Peabody v. Marks

• Decision Date: 01 January 1860
• Citation: 25 Tex. 19
• Parties: CATHERINE PEABODY v. JONAS MARKS AND OTHERS.
• Court: Texas Supreme Court

25 Tex. 19

CATHERINE PEABODY

v.JONAS MARKS AND OTHERS.

Supreme Court of Texas.

1860.

The provision of the statute dispensing with security from administrators and executors, in appeals taken by them, does not extend to cases in which the matter in controversy concerns the administrator or executor individually. 13 Tex. 345.

The act of February 5th, 1858, which provides that the plaintiff in error shall give bond for all costs, taken in connection with the act of 13th May, 1846 (Hart. Dig. 793, 794), requires the execution of the bond within two years from the rendition of the judgment sought to be revised.

The filing of the petition, and the filing of the bond, need not be simultaneous; but the right to the writ of error can only be secured by the filing of both, before the expiration of two years after the rendition of the judgment.

ERROR from Cameron. Tried below before the Hon. M. P. Norton.

Catherine Peabody, the plaintiff in error, was appointed administratrix of the estate of her deceased husband, David Peabody, on the 15th day of February, 1856; and the county court set apart to the use of said widow and the minor children of the deceased, the homestead, and certain other property exempt by law from forced sale, on the first day of March, 1856.

On the 4th day of September, 1857, said Catherine filed in that court her petition, showing that in consequence of a want of title thereto, she had been forced to pay of her own funds a large amount to the claimants thereof, to enable her to retain possession of the same, and therefore prayed that the order setting it apart to her and the children be rescinded; that the property be returned to the estate as assets thereof, and that in lieu thereof a sufficiency of the property belonging to the estate be sold to raise for her and said children the full constitutional allowance for a homestead; for that, by reason of the want of title of the deceased or herself to the premises, the same did not constitute a homestead as known to the law. This application was opposed by Jonas Marks & Co., and other creditors of the estate.

On a hearing of the application, it appearing to the court that the homestead set apart as aforesaid was incumbered with a claim for the purchase-money thereof, to the amount of three hundred dollars, and the widow having paid that amount in order to perfect the title, it was ordered and adjudged by the court, that the sum of three hundred dollars be appropriated out of the estate and allowed her, in addition to the homestead set apart as aforesaid, with interest thereon from the date of payment. From this order she appealed to the district court.

On the 30th day of October, 1857, the cause was determined in the latter court, and the judgment of the county court was affirmed. The petition for a writ of error was filed on the 14th day of March, 1859, by the plaintiff in error, describing herself therein as administratrix of the estate of David Peabody, deceased; and on the 5th day of January, 1860, she filed a bond for costs.

The defendants in error filed a motion to dismiss the writ of error, because the bond was not filed, and the writ of error was not granted in the court below before the expiration of two years from the rendition of the judgment complained of.

Allen & Hale, for the plaintiff in error.

Ballinger & Jack, for the defendants in error. In 6 Tex. 250, and 18 Tex. 400, it was decided, that a writ of error might be prosecuted which would not be suspensive of execution without a bond for costs.

The act of February 5th, 1858, provides that “no writ of error to remove a cause from the district court to the supreme court, shall in any case issue, unless the plaintiff in error give bond, with sufficient security, for all the costs which may accrue in the supreme court, and which may have accrued in the district court.”

The provision, that “no security shall be exacted of executors or administrators of deceased persons' estates in appeals taken in suing for such money or property, or in defending suits brought against such estates for money or property” (O. & W....