Runnels v. Kownslar

• Decision Date: 01 January 1864
• Citation: 27 Tex. 528
• Parties: HAL R. RUNNELS v. R. B. KOWNSLAR.
• Court: Texas Supreme Court

27 Tex. 528

HAL R. RUNNELS

v.R. B. KOWNSLAR.

Supreme Court of Texas.

1864.

The complaint which the statute (art. 822, O. & W. Dig.) requires a creditor to file in order to compel persons entitled to the estate under the will, or the heirs-at-law, to execute an obligation to pay all debts that may be established against it, is not to be held nor regarded as a suit in its technical sense.

It is not necessary for the citations or notices which must be served upon the heirs or persons entitled to the estate under the will, to preserve the forms or contain all the ingredients essential in original writs for the commencement of actions in the district court.

If the citation provided for in such cases is sufficient to inform the opposite party with reasonable certainty of the nature and object of the proceeding against him, it is all that is contemplated by the law--this is sufficiently done when the citation is accompanied by and refers to a copy of the complaint which he is required to answer.

The case of Hogue, Executor, v. Sims (9 Tex., 546), as to the construction of art. 822 of O. & W. Dig., cited and approved.

The statute applies as well to creditors who hold claims against an estate evidenced by promissory notes as to those whose claims have been established by final judgments; nor does the fact that a judgment, rendered in the district court, has been appealed from or removed by writ of error to the supreme court, affect the rights of such judgment creditor under the statute to compel the legatees or heirs to execute a bond.

When in such a suit the county court required the legatees to execute a bond in double the amount of the inventory, and the district court, on appeal, reversed and so reformed the judgment as to require the legatees to execute a bond “to the amount of the inventory of the estate, as appears by the record in said court,” and ordered “its judgment to be certified to the county court for its observance,” it was held that the district court did not err in directing the bond to be given in the county court.

It was further held that the decree of the district court, referring to the inventory, was sufficiently definite to fix the amount of the bond.

ERROR from Harris. Tried below before the Hon. Peter W. Gray.

This case originated in the county court of Harris county, under art. 822, O. & W. Dig., to compel the legatees of Hiram G. Runnels, deceased, to execute a bond for the payment of the debts due by the estate.

The petitioner alleged that he was a creditor of the estate of decedent in the sum of four hundred and forty-one dollars and fifty cents, as more fully appeared by a judgment rendered on the 29th day of November, A. D. 1858, in the district court of Harris county; that letters of executorship on the estate of said decedent had been granted at the January term, 1858, of the county court of Harris to Hal G. Runnels, who by a provision in the will of the decedent was appointed executor, and not required to give a bond for the faithful performance of his duties as such. That Hal G. Runnels and Obedience A. Runnels were the only heirs of said decedent; that the executor may place the property belonging to the estate beyond the reach of those having claims against it, by which means your petitioner may lose his claim; that the said sum of money had long been due and unpaid, and the executor had refused to pay the same, and prayed that the said legatees be cited and “required to execute an obligation payable to the chief justice of Harris county in double the amount of the value of said estate, and that an order may issue for the sale of so much of the property belonging to said estate as may be necessary to satisfy your petitioner's claim,” etc.

Separate citations were issued, one of which was as follows, to wit:

“The State of Texas, County of Harris--County Court; to May Term, 1859.

To the Sheriff of Harris County, Greeting:

You are hereby commanded to summon Hal G. Runnels, executor of the will of Hiram G. Runnels, deceased, if to be found in your county, to be and appear before the county court of Harris county, at the court house in the city of Houston, on the last Monday in May, A. D. 1859, to answer the petition of R. B. Kownslar, a copy of which is herewith delivered,” etc.

The citation issued to Obedience A. Runnels, the widow of Hiram G. Runnels, was substantially the same which was served with a certified copy of the plaintiff's petition.

Hal G. Runnels moved to quash the citation, and for cause, assigned that the citation did not correctly describe the parties defendant mentioned in said plaintiff's petition, in this: that by said petition Hal G. Runnels, executor of the last will and testament of said decedent, and Obedience A. Runnels, are made co-defendants, and said citation made mention of only one defendant, namely, Hal G. Runnels. He also demurred generally to the petition, and specially answering, said that the plaintiff had no right against him or his co-defendant, O. A. Runnels; because said plaintiff was not a creditor of the estate of his testator. He admitted that a judgment was rendered in the district court of Harris county on the 29th day of November, A. D. 1858, in a certain cause wherein R. B. Kownslar was plaintiff, and Hal G. Runnels, as executor aforesaid, was defendant; that the judgment was rendered against defendant for $441.50. That this defendant, on the 14th day of March, A. D. 1859, sued out a writ of error to the supreme court, at the January term, 1860, of the Galveston district. That he had executed a bond for costs, as required by law; that said cause had not been decided by the supreme court, and that the same was still pending. O. A. Runnels filed a motion to quash, a general demurrer, and a special answer, substantially the same.

The county court overruled the motions to quash and the demurrers, and decreed that “the defendants be required to execute a bond with security in double the amount of the property, as appears by the inventory on file in this court,” from which judgment the defendants appealed to the district court of Harris county.

On the trial in the county court, the proceedings had in the case of R. B. Kownslar against Hal G. Runnels, executor, was read in evidence; also the petition for writ of error, and bond for security for costs. It was admitted that the judgment was rendered as...