Summerlin v. Reeves

CourtSupreme Court of Texas
Writing for the CourtCOKE
Citation29 Tex. 85
Decision Date31 January 1867
PartiesEBENEZER SUMMERLIN ET UX. v. JOHN REEVES, EXECUTOR.

29 Tex. 85

EBENEZER SUMMERLIN ET UX.
v.
JOHN REEVES, EXECUTOR.

Supreme Court of Texas.

January, 1867.


Where the petition for a writ of error omitted the name of a plaintiff, but the writ of error issued by the clerk properly described the judgment, a motion to dismiss will not be sustained. Pas. Dig. art. 1495, note 587; 5 Tex. 568;12 Tex. 36.

Where one of the plaintiffs is not a party to the writ of error, and is not cited, it is a fatal objection. 4 Tex. 56;27 Tex. 526.

In the case of rehearing or appeal, all parties interested in supporting the decree or order appealed from are entitled to be heard, but no party except the appellant can be heard in support of the appeal.

[29 Tex. 86]

ERROR from Goliad. The case was tried before Hon. M. P. NORTON, one of the district judges.

Daniel Lloyd and wife, L. L. Lloyd, sued Ebenezer Summerlin and Eliza Summerlin, his wife. Daniel Lloyd died pending the suit, and John Reeves, his executor, was made a party in his stead. The plaintiffs recovered a money judgment and a decree to enforce the vendor's lien. From this judgment the defendants appealed and gave bond on the 5th December, 1858. On the 12th December, 1860, the defendants filed their petition for a writ of error. [I suppose they had not carried up the case on appeal.--REPORTER.] On the 12th December, 1860, the defendants filed their petition for a writ of error, and in the petition they described the judgment as having been recovered by John Reeves, executor, etc. The error bond contained the same description, but the writ of error by the clerk described the judgment correctly. Reeves alone was served with citation. No notice was taken of L. L. Lloyd, the wife, in any of the proceedings, except to name her, nor is any reason given why she was joined in the suit, except that she joined in the deed conveying the land (the homestead) for which the note was given.

The transcript was filed on the 13th February, 1860. The date of filing the motion to dismiss does not appear, but it must have been ante bellum. The defendants in error moved to dismiss, on the following grounds:

“1. The petition for a writ of error is defective, in that it does not describe the parties to the suit. * *

2. L. L. Lloyd, one of the plaintiffs in the case, as shown by the transcript, has not been cited, is not a party to the writ of error.

3. The sheriff's return upon the writ is insufficient. * * [Technical.-- REPORTER.]

4. The bond in error, executed by the plaintiffs in error, is insufficient, because the same is not in double the amount of the sum involved in the case; and because

[29 Tex. 87]

the same is not under seal; and because the bond was filed two months...

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4 practice notes
  • Ferguson v. Beaumont Land & Building Co.
    • United States
    • Court of Appeals of Texas
    • 30 January 1913
    ...have cited the following authorities, which have more or less bearing on the question: Crunk v. Crunk, 23 Tex. 605; Summerlin v. Reeves, 29 Tex. 85; Thompson, Morris & Co. v. Pine & Poindexter, 55 Tex. 427; Young v. Russell, 60 Tex. 684; Weems & Waldo v. Watson, 91 Tex. 35, 40 S......
  • Mason v. Mason, No. 10964
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 16 May 1962
    ...will necessarily be affected by any decree that may be rendered and therefore are necessary or indispensable parties. Summerlin v. Reeves, 29 Tex. 85, 86, 88; Cook v. Pollard, 70 Tex. 723, 8 S.W. 512; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 477, and no judgment or decree should be r......
  • McDonald v. Grey
    • United States
    • Supreme Court of Texas
    • 31 January 1867
    ...the conclusion, that it was properly construed by the judge in the court below to import an unconditional acknowledgment of the principal [29 Tex. 85]of the debt, and therefore furnished a valid cause of action for that amount. Previous to the letter, it is not shown that appellant claimed ......
  • Files v. Buie, No. 2134-7035.
    • United States
    • Supreme Court of Texas
    • 2 February 1938
    ...interests or rights by a reversal or modification of a judgment is a necessary party to the writ of error proceedings. Summerlin v. Reeves, 29 Tex. 85, and authorities in 3 Tex.Jur. 162. Certainly it seems to us that an administrator of the estate is an interested and adverse party within t......
4 cases
  • Ferguson v. Beaumont Land & Building Co.
    • United States
    • Court of Appeals of Texas
    • 30 January 1913
    ...have cited the following authorities, which have more or less bearing on the question: Crunk v. Crunk, 23 Tex. 605; Summerlin v. Reeves, 29 Tex. 85; Thompson, Morris & Co. v. Pine & Poindexter, 55 Tex. 427; Young v. Russell, 60 Tex. 684; Weems & Waldo v. Watson, 91 Tex. 35, 40 S......
  • Mason v. Mason, No. 10964
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 16 May 1962
    ...will necessarily be affected by any decree that may be rendered and therefore are necessary or indispensable parties. Summerlin v. Reeves, 29 Tex. 85, 86, 88; Cook v. Pollard, 70 Tex. 723, 8 S.W. 512; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 477, and no judgment or decree should be r......
  • McDonald v. Grey
    • United States
    • Supreme Court of Texas
    • 31 January 1867
    ...the conclusion, that it was properly construed by the judge in the court below to import an unconditional acknowledgment of the principal [29 Tex. 85]of the debt, and therefore furnished a valid cause of action for that amount. Previous to the letter, it is not shown that appellant claimed ......
  • Files v. Buie, No. 2134-7035.
    • United States
    • Supreme Court of Texas
    • 2 February 1938
    ...interests or rights by a reversal or modification of a judgment is a necessary party to the writ of error proceedings. Summerlin v. Reeves, 29 Tex. 85, and authorities in 3 Tex.Jur. 162. Certainly it seems to us that an administrator of the estate is an interested and adverse party within t......

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