| Tex. | Jul 1, 1857
Kimbro W. Barton, having been sued by the defendant in error, Jonathan Nix, departed this life before service of process. The cause was continued at the first Term, and sci. fa. ordered to the legal representatives of the deceased.
During the vacation the plaintiffs in error, sole heirs at law of deceased, being desirous to close up the estate without administration, agreed in writing under seal, in consideration that the attorneys for plaintiff would not compel administration, that they would at the next Term of the Court make themselves parties defendants, and in default thereof would pay the full amount claimed in the suit, with costs.
They failed to appear at the next Term, and it was adjudged that having failed to appear and make themselves parties defendants and answer according to their stipulations, but therein making default, the plaintiff should recover of said defendants the said sum of two hundred and seventy-three T3o7o dollars, the amount agreed to be paid in said agreement, and costs of suit.
The defendants sued out a writ of error and assigned,
1st. That there was no service of process on the defendants, nor was there waiver or acceptance of process.
2d. That the justness of the debt was not sworn to.
We are of opinion that these grounds are not sufficient to defeat the plaintiff of his right to a judgment.
The defendants were the heirs of the deceased, and desiring to avoid the trouble and expense of administration, they agreed to become parties to the suit. This was equivalent to an agreement by an administrator that if sai. fa. be not served upon him he would come in voluntarily and make himself a party defendant. Would not this ipso facto make him a defendant ? A scire facias, if served, would require him to appear and show cause why he should not be made a party. If he does not appear, he is made defendant by order of the Court. If he agree to appear and become defendant, and makes default, and does not appear, is there any reason why he should not, in accordance with his own voluntary stipulations, be made party defendant ? There is
The defendants, standing as they do in the place of the administrator, by their stipulation, became in effect parties to the suit, and by order of the Court should have been recognized as defendants ; and having failed to appear, judgment by default should have been entered against them upon the account or cause of action. From the phraseology of the entry, it might be concluded that judgment was rendered on the covenant in the agreement. This is error. A separate suit might have been brought, perhaps, to recover on the agreement; but no judgment could, in this suit, be entered on the instrument, for the amount stipulated.
The defendants are to be regarded as parties to this suit, and judgment rendered against them for the amount sued upon as against other defendants who have made default; and so far the judgment must be reformed. Ordered that the judgment be reformed and rendered in this Court.
Judgment reformed.