Stroud v. Ward, 1027.

• Decision Date: 29 January 1931
• Docket Number: No. 1027.,1027.
• Parties: STROUD v. WARD.
• Court: Texas Court of Appeals

36 S.W.2d 590

STROUD v. WARD.

No. 1027.

Court of Civil Appeals of Texas. Waco.

January 29, 1931.

Rehearing Denied March 26, 1931.

Appeal from District Court, Limestone County; W. R. Boyd, Judge.

Suit by Mrs. Alice P. Ward against J. R. Stroud and others. From the judgment, defendant named appeals.

Order dismissing appeal set aside, and appellant granted leave to file amended supersedeas bond.

Ira Lawley, of Groesbeck, for appellant.

W. W. Mason, of Mexia, and C. S. Bradley, of Groesbeck, for appellee.

On Motion to Reinstate Appeal and to File Amended Bond.

ALEXANDER, J.

This suit was instituted in the Eighty-Seventh district court of Limestone county by Mrs. Alice P. Ward against J. R. Stroud and T. C. Williams and A. E. Williams to recover a debt and for the cancellation of an oil and gas mining lease. Judgment was for plaintiff against the defendant Stroud for her debt and against all defendants canceling the lease. Defendant Stroud gave notice of appeal and filed a supersedeas bond, payable to Mrs. Alice P. Ward, T. C. Williams, and A. E. Williams. At a former date this court sustained a motion to dismiss the appeal because it was shown that Mrs. Alice P. Ward, the plaintiff in the lower court, died after notice of appeal had been given but before the bond had been filed. The appellant in his motion for rehearing asks the court for permission to file an amended supersedeas bond, payable to the temporary administrator of the estate of Mrs. Ward and to her heirs and devisees, naming them. The attorneys who represented Mrs. Ward in the trial court have filed in this court a motion as amici curiæ, in which it is urged that the case could not have been brought to this court by appeal in the first instance, and that, by reason thereof, the bond cannot be amended, and, even if it can be amended, the court will not have jurisdiction of the cause.

It is the contention of the amici curiæ that, where a plaintiff dies after judgment and before the appeal bond is filed, the only method for bringing the case before the Court of Civil Appeals is by writ of error, and that, since the cause could not have been brought before this court by an appeal in the first instance, the appellant cannot now perfect the appeal by filing an amended appeal bond. We have been unable to find any case wherein it has been decided whether or not such case can be removed to the Court of Civil Appeals by direct appeal. The case has been ably briefed by counsel on both sides, and they have cited us to no such authority.

By Revised Civil Statutes 1925, art. 2083, it is provided that, if either party dies after the verdict or before judgment, the judgment shall be entered as if both parties were alive.

By Revised Statutes, art. 1850, it is provided that, if a party dies after the appeal bond has been filed and approved, or after the citation in writ of error has been served, the suit shall not abate, but the court shall proceed as though all parties were alive.

By Revised Statutes, art. 2277, it is provided that, in case of the death of any party entitled to an appeal or writ of error, the same may be taken by his executor, administrator, or heirs.

It will be seen, therefore, that the Legislature has not prescribed any method of appeal nor designated who should be the appellees or defendants in error in the event the successful party in the trial court dies after the judgment in that court and before an appeal bond has been filed and approved or the citation in writ of error served. Saner v. Spivey (Tex. Civ. App.) 230 S. W. 878, 879, at page 883; Id. (Tex. Com. App.) 238 S. W. 912. A dissatisfied litigant, however, has the constitutional right to have his case reviewed by the Court of Civil Appeals. Our Supreme Court recognized this defect in our law as early as 1854, but held that such injured party should not be without his remedy. In the case of Teas v. Robinson, 11 Tex. 774, that court said:

"If the Legislature had provided no mode of bringing up cases, this Court has competent authority to have established such modes, and to have rendered them effectual for that purpose; and in cases not provided for by statute, it is within the legal powers of the Court, to devise and authorize such appellate process as may be necessary to enforce its own jurisdiction, and secure the rights of parties interested a hearing and a revision of the judgments in this Court. If such were not the case, then there would be no mode, by which judgments in a condition similar to that in which the one before the Court is placed, could be revised. The death of the plaintiff in the judgment, in that event, would have been of signal advantage to his heirs. Their rights to the land would by this act of Divine Providence, be irrevocably established, and those of the defendant irrevocably defeated. Such cannot, legally, be the result of the death of one of the parties to a judgment. The right of the party against whom judgment is, cannot, from such cause, be extinguished. If the successful party dies after judgment, his representatives may be summoned and will be required to make their defence before the appellate Court, in order that the respective rights of the parties may be determined in the tribunal, which, by law, has the power of final adjudication. This rule of practice is in accordance with the received rules for interpreting statutes to prevent abatements in suits. They are construed liberally to promote the object designed."

In Tucker v. Anderson, 25 Tex. Supp. 155, the court there held that in such case, where the Legislature had not provided any appropriate means of appealing a case, the appellate court had authority to establish such modes and to render them effectual for that purpose. Since the above cases were decided, the practice of removing such cases to the appellate court by writ of error has become the well-recognized procedure. Binyon v. Smith, 50 Tex. Civ. App. 398, 112 S. W. 138; Western Union Telegraph Co. v. Wofford, 32 Tex. Civ. App. 427, 72 S. W. 620, 74 S. W. 943; Saner v. Spivey (Tex. Civ. App.) 230 S. W. 878, 879; Simmons v. Fisher, 46 Tex. 130. If the losing party dies before the...