Thomas v. Jones

• Decision Date: 01 January 1853
• Parties: THOMAS AND OTHERS v. JONES.
• Court: Texas Supreme Court

10 Tex. 52

THOMAS AND OTHERS

v.JONES.

Supreme Court of Texas.

1853.

Where an administrator seeks to reverse a judgment to which he was not a party, he should aver, in his petition for a writ of error, that he has been duly appointed, and that the property in controversy would be assets in his hands if recovered; it is not sufficient merely to describe himself as administrator. (Note 8.)

Where a defendant dies pending a suit for land, and no one will administer, the plaintiff may make the heirs parties, and proceed to judgment. If the heirs be minors without guardian, a guardian ad litem may be appointed; and, in the latter case, it is not necessary to serve the heirs with process. And it seems that the same may be done where the suit concerns personal property. (Note 9.)

Error from Brazoria. This suit was instituted by the defendant in error, against Solomon Williams in 1841, to recover a tract of land. In 1844, the death of the defendant was suggested. The case was continued from term to term, to obtain service on his legal representatives. In 1849, the plaintiff filed a petition for the purpose of making parties, naming the heirs, and praying that they be made parties defendant. Afterwards the plaintiff filed an amended petition, in which it was averred that there was no administration upon the estate of Solomon Williams; that his heirs, who were named and averred to be his only heirs, were minors; that E. M. Thomas was their natural guardian, but that they had no guardian appointed by the court, and praying that one be appointed to represent them. A guardian ad litem was appointed, who appeared and answered on their behalf, denying the cause of action. E. M. Thomas also appeared and joined in the answer.

At the Spring Term, 1850, there was a verdict and judgment for the plaintiff. In 1851 a petition for a writ of error was filed by Peter McGreal, as attorney for the defendants, and Lambert Mims, “administrator of the estate of Solomon Williams.” At the last term of this court, the infant plaintiffs in error, by their next friend and guardian, E. M. Thomas, moved the court to dismiss the writ of error, supported by affidavit, averring that the writ was prosecuted without their authority or consent, and against their wishes, and that it was prosecuted solely by the said Mims, who claimed to be a creditor of the estate of the deceased Williams, but who did not take out letters of administration until after the judgment rendered in this case.

P. McGreal and R. Hughes, for plaintiffs in error.

Harris & Pease, for defendant in error.

WHEELER, J.

There is no averment in the petition for a writ of error that Mims is administrator. And it is only by the tacit admission in the affidavit in support of the motion to dismiss that we are distinctly apprised of that fact, and of his purpose in prosecuting a writ of error. But if it sufficiently appears that he is administrator of the estate of Williams, he was not a party to the suit, and it does not appear that, as administrator, he is interested in the judgment. If the defendants had recovered in the action, it does not follow as of course that the land must have been subjected to administration. That would depend on facts which do not appear. We do not think any stranger to the...