Carson v. Cock

50 Tex. 325 | Tex. | 1878

Moore, Chief Justice.

This suit was brought by appellants against the appellee as the administrator of John IT. Prince, deceased, to establish certain notes and accounts enumerated and described in their petition, alleged to belong to them, as valid claims against the estate of said Prince. This is the third time this case has been before this court. (38 Tex., 285; 45 Tex., 429.) When last here, the judgment of the court below in favor of the present appellants Avas reversed, because it Avas in part founded on supposed debts and contracts made by John H. Phelps, as surviving partner of the firm of Phelps and the decedent, John PI. Prince. After the case was remanded the plaintiffs, Carson & Lewis, announced in open court, as is shoAvn by the record, that they would no further prosecute their suit to establish any of the claims set forth in their petition which accrued subsequent to the death of Prince. But notwithstanding their abandonment of this part of their action, the court sustained a general demurrer to their petition; and plaintiffs not asking to further amend, the suit was dismissed.

The case is submitted to us on brief for appellants, made, AAÚth the exception of too great meagreness in its statements, in strict conformity with the present rules of the court; and as no appearance whatever has been made for appellee, we cannot say what Avere the objections urged against the petition by appellee, or the grounds upon which the court sustained his demurrer. The petition is unquestionably vague and indefinite in some of its most material averments, though it is likewise unusually voluminous. It is certainly very loosely and inartificially drawn; but Avhile it is justly subject to criticism in these respects, Ave think it is charged with reasonable certainty, when excepted to merely by general demurrer, that appellants are the holders and owners of valid claims against the estate of appellee’s intestate, described in the petition, which had been duly presented to appellee as valid claims against the estate of his intestate and rejected by him. How, without undertaking to say that such is the case iu regard to all the claims upon which appellants are still seeking judgment, we think the averments in their petition are sufficient to entitle them to a recovery upon some of them. If so, the court should, instead of sustaining, have overruled the demurrer, and have required appellants to re-plead, if, indeed, that should not have been required before passing upon the demurrer. This should have been required, if for no other reason than to compel the plaintiffs to conform their action to the judgment of this court on the former appeal. The attempt to relieve their petition from exception on this ground, by the announcement to the court that they would not further prosecute their action on the debts alleged to have been contracted by the surviving partner after the death of Prince, should not have been recognized or permitted; but they should have been required to do this by an amendment of their pleadings.

The judgment is reversed and the cause remanded.

Reversed and remanded.