Teas v. Robinson

• Decision Date: 01 January 1854
• Citation: 11 Tex. 774
• Parties: TEAS v. ROBINSON, ADM'R.
• Court: Texas Supreme Court

11 Tex. 774

TEAS

v.ROBINSON, ADM'R.

Supreme Court of Texas.

1854.

In cases not provided for by the statute, it is within the legal powers of this Court, to devise and authorize such appellate process, as may be necessary to enforce its own jurisdiction. (Note 97.)

Where, after obtaining judgment in the District Court, the plaintiff dies before the defendant prosecutes his writ of error, the defendant cannot revive the judgment in the District Court against himself in favor of the representatives of the deceased plaintiff, with a view to the prosecution of a writ of error to the Supreme Court; the proper practice being to sue out a writ of error, stating in the petition therefor the fact of the death of the plaintiff, and praying for citation to the party or parties who by law are authorized to represent and maintain his interests.

Appeal from Walker. The plaintiff in error (who was plaintiff also below) alleges that the judgment was rendered in favor of one Wm. McDonald, now deceased, against the said plaintiff, one A. J. Stevens and one John Cotton, also deceased, which judgment was to the effect that a deed for a tract of land, executed by the said A. J. Stevens, as Sheriff of Walker county, to the petitioner, was fraudulent, null, and void, and should be set aside; and he further alleged that before any steps were taken to remove the cause to the Supreme Court, ?? said. Wm. McDonald departed this life, and Benjamin W. Robinson was appointed his administrator, and that John Cotton, one of his co-defendants, had also departed this life, no administrator having as yet been appointed; that the said judgment is unjust and erroneous, and that he is desirous of prosecuting a writ of error from the same; and he prays scire facias to the said Robinson, as the administrator of McDonald, and to the legal representatives of Cotton, when known, that they might show cause why they should not be made parties to said suit, and judgment, in order to defend any writ of error that might be sued out to revise or correct the same.

The defendants excepted to the petition, and the exception being sustained, the scire facias was quashed, and judgment entered for defendant. The plaintiff, by writ of error, has brought up the judgment for revision, and assigns error in sustaining the exceptions, quashing the scire facias, and in dismissing the petition.

W. A. Leigh, for appellant.

Yoakum & Branch, for appellee.

HEMPHILL, Ch. J.

We are of opinion that there is no error in the judgment of the District Court. There is no statutory provision authorizing the party against whom there is judgment in the District Court, to have that judgment revived in that Court against himself, the opposite party being dead, for the sole purpose of making parties to the judgment, and placing it in a condition to be susceptible of transfer to the Supreme Court. The District Court is not the tribunal in which to seek redress under the circumstances. But the party, as will be seen in the progress of this opinion, is not without his remedy.

It is very true that no express provision has been made for the case. The statute providing against abatements in the Supreme Court, is very defective. Prior to 1846, the laws in relation to abatements were general, extending to all Courts; but the only provision now applicable to causes in the Supreme Court, is that authorizing the Clerk, when the plaintiff or defendant in a pending cause shall die, to issue process on application, during the recess of the Court, to enable the Court to proceed to final judgment in the name of the representative of such deceased person. This contemplates judgments, only, which are by or against persons in their own right; and not those where the plaintiff or defendant is an executor or administrator; for if they die, their representative is not the proper party, but the representative of the deceased testator or...