Portis v. Cole

• Decision Date: 01 January 1853
• Citation: 11 Tex. 157
• Parties: PORTIS v. COLE AND ANOTHER, ADM'RS.
• Court: Texas Supreme Court

11 Tex. 157

PORTIS

v.COLE AND ANOTHER, ADM'RS.

Supreme Court of Texas.

1853.

Where a general demurrer is overlooked, and a new trial is granted for any cause, the demurrer may be insisted on, when the case is called for trial again.

An attorney-at-law can maintain an action against an administrator in his representative capacity, upon a reasonable contract for professional services in a case where such services were necessary.(Note 34.)

Appeal from Washington.

J. Sayles, for appellant.

A. M. Lewis, for appellees.

LIPSCOMB, J.

This suit was brought to recover the value of the plaintiff's services in a suit against the estate of the defendants' intestate, on a verbal contract, made by and between the plaintiff and the administrators, the defendants in this suit.

There was a demurrer to the plaintiff's petition, which seems to have not been acted upon by the Court; and there was a trial, and verdict for the plaintiff; a new trial awarded on motion of the defendants; and at the next Term, the defendants insisted on the demurrer, and the Court adjudicated on, and sustained it.The appellant has assigned two objections to the judgment sustaining the demurrer.The first is, that it was error to consider of the demurrer, as, a trial having been had without defendants asking the judgment of the Court, it amounts to a waiver of the same.The second is error in sustaining the demurrer.If we were called upon to revise a judgment rendered upon the verdict in this case, had it not been set aside, we would have held, no notice of the demurrer being taken, that the parties going to trial was a waiver, on the part of the party demurring.(Mims v. Mitchell, 1 Tex. R., 443;Jones v. Black, Id., 527.)But where there has been a trial by the jury, without the demurrer being disposed of, and a new trial granted, the Court may then pass upon and decide the demurrer, that had not been before noticed.(Zacharie v. Bryan, 2 Tex. R., 276.)

But, if the opinion of the Court, on the demurrer, is correct, it is of little consequence as to what disposition was made of the demurrer; as, if it had been passed over again, and waived on the trial, it could have been available in arrest of judgment, or on error assigned in this Court, as it went to the whole right of action; and this brings us to the second assignment of error, and to the consideration, whether the plaintiff showed, in his petition, any right of action.

As a general proposition, it is not controverted, that, at Common Law, an administrator cannot create a debt against the estate of an intestate, by his own contract; but this proposition, on an investigation, upon principle, will be found to be more technical than true in point of fact.At Common Law, the legal right to the personality vested in the administrator; but, in a settlement of the estate, he was allowed compensation for all reasonable expenses and services, incurred or rendered for the benefit of the property of the estate; and as these expenses were incurred or services rendered, it became a debt due him from the estate, or there could be no foundation for allowing him reimbursement.Therefore, he in truth created the debt; and this debt he could pay to himself, out of the assets in his hands.With us, according to the decisions of this Court, the legal title does not vest in him, at all, but is vested in the heir, incumbered with the debts of the estate.Therefore, when he sued for property or defended when sued, it was, at Common...