Pitner v. Flanagan

• Decision Date: 01 January 1856
• Parties: S. R. PITNER, ADM'R, v. J. W. FLANAGAN.
• Court: Texas Supreme Court

17 Tex. 7

S. R. PITNER, ADM'R,

v.J. W. FLANAGAN.

Supreme Court of Texas.

1856.

Where a creditor of an estate filed his petition in the county court, alleging that his claim had been allowed and approved, and ordered to be paid, and that the administrator had funds but refused to pay, wherefore he prayed judgment and execution against the administrator, on which petition citation was issued to the administrator and served upon him, it was held that there was no valid objection to this form of proceeding in such a case.

The approval by the chief justice of the allowance of a claim by an administrator or executor, is a judgment which cannot be impeached collaterally in the county court. [5 Tex. 487;post, 138; 28 Tex. 732.]

Where, on an appeal from the county court, the proper judgment would have been against the administrator in his personal capacity, but instead of such judgment it was decreed that the claim be certified to the county court to stand as an accepted claim against the estate, and the administrator brought a writ of error, the judgment was reformed at the costs of the plaintiff in error.

Error from Rusk. Heard before the Hon. W. W. Morris.

The petition alleged that the county court had made an order that the claim should be paid out of the first money coming to the hands of the administrator. There was no statement of facts nor bill of exceptions.

M. Casey, for plaintiff in error.

B. Smith, for defendant in error.

LIPSCOMB, J.

The proceedings in this case commenced before the probate court, by the petition of the defendant in error. He states that he had a claim against the estate of the defendant's intestate; that his claim had been duly authenticated and admitted by the administrator; that it had been allowed by the judge of the probate court; that an order had been entered at a term previous to the filing of this petition, by which order of the probate court the administrator had been required to pay the amount so admitted and allowed. It alleges that the administrator had ample means in his hands, of the assets of the estate of his intestate, to pay the amount, but had failed to do so; prays citation and judgment. The citation issued and was served on the administrator. He appeared in obedience to it, and by consent of both parties the case was continued to the next term of the said court. At the succeeding term, after hearing the parties, judgment was given for the plaintiff, and execution was awarded against the administrator, and he appealed to the district court. In that court he set up exceptions to the manner in which the suit was brought in the probate court; that he should have been called upon to make an exhibit, and settle his accounts. He set up other defenses, going to impeach the judgment of the probate judge in allowing the claim of the plaintiff. These exceptions were all overruled, and the district judge affirmed the judgment of the probate court, and ordered that the judgment be certified below, and stand as an accepted claim against the said estate. The defendant brought error to reverse the judgment of the district court.

The district court did not err in overruling the...