28 Tex. 503 | Tex. | 1866
—At its May term, 1855, a judgment was
On the 10th of March, 1858, affidavit was made by said Co'opwood, on a duly certified transcript of the proceedings in said suit from the records of said high court of errors and appeals, “ that the amount contained in the foregoing transcript from the record of the high court of errors and
“ ‘ The undersigned, the executor of the estate of Mark Pruitt, deceased, rejects the whole of the within claim.
“ September 16,1858. J. W. Speight, Executor.”
Subsequent to which the present suit was brought by appellants, claiming that they are entitled, as the sole heirs of said John C. Cherry, deceased, to a judgment against said appellee, as executor of said Mark Pruitt, deceased, for .the amount due on said judgment set out in said transcript, which by 'amendment is appended to and made a part of their petition.
It is quite apparent, from the facts which we have thus briefly presented, that the proper determination of this case depends upon the question whether appellants’ cause of action is founded upon the judgment of the vice chancery court or upon the judgment pronounced on the appeal by the high court of errors and appeals of the State of Mississippi. If it be upon the former, as the judgment was rendered in the lifetime of Pruitt on personal service-, it is evi
The copy of the record upon which the affidavit verifying appellants’ claim was made, and which was presented to appellee for allowance as their claim against the estate of appellee’s testator, contains a complete transcript of the proceedings had in the suit, both in the vice chancery court at Pulton and in the "appeal in the high court of errors and appeals. Although there may have been a technical or formal inaccuracy in the presentation of the claim, or the description of it in the affidavit, if the record showed a claim against the estate of his testator which should have been allowed by the appellee, and the facts stated in the affidavit were sufficient to authorize its allowance, it should have been acknowledged. This appears to have been the view which was properly taken of the question by the appellee; for, by Ms endorsement on the transcript, he says he rejects unconditionally the “whole of the within claim.” "We deem it therefore immaterial to inquire whether the language of the affidavit, if strictly construed, would not be held to apply more directly to the judgment of the high court of
He no doubt rejected the claim upon the ground that the judgment of the vice chancery court had been vacated and annulled by the appeal, that this judgment after the appeal had no force and effect whatever, and that the judgment of the high court of errors and appeals could alone be looked to in determining the rights which appellants could claim from the adjudication of the matters in controversy in said suit. From the instructions given the jury, this is also evidently the view taken of the case by the District Court.
If the question were one which should be ruled by the laws of this State, or its construction by our own courts, it might be thought that some support at least was given to this position by the opinion of this court in the case of Edwards v. Taney, 27 Tex., 224. I avail myself, however, of the present occasion to say, that it was not intended by the court in that case to do more than to decide the question presented in the record then before the court, which was an action for malicious prosecution. The case was decided at a time when the court was compelled to dispose of the business before it in the absence of counsel, and without the aid of their investigation of questions upon which it was forced to act. I may also say, that subsequent reflection has led me to entertain some doubt as to the correctness of the doctrine recognized in this opinion, even in the character of cases to which I regarded it as limited when it was announced, and that I shall therefore
But the question in the case now before us is controlled neither by the statutes nor the decisions of this State. Its solution depends entirely upon the law of Mississippi. We must determine simply what force and effect these judgments have there. When this is ascertained, it is our duty to give them the same effect here. In our opinion, it is very clear, from the statutes and decisions of the courts of that State, that the appeal to the high court of errors and appeals did not vacate or annul the judgment of the vice chancery court. Pending the appeal, its execution was suspended. Its affirmance removed the impediment to its enforcement which the appeal interposed, but it was at all times a valid and subsisting judgment. The appeal stayed its execution merely, until its regularity and validity could be inquired into by the appellate court, but neither the appeal nor the decision of the high court of errors and appeals canceled or revoked it. Nor did that court pronounce a new judgment in its place and stead. It simply affirmed the existing and valid judgment of the vice chancery court, and gave the additional judgment which the law authorized in case of a wrongful appeal. But this additional judgment is not in lieu or substitution of the judgment of the lower court, which is adjudged to be affirmed, but is distinct from, and in one sense independent of it. By the laws of Mississippi, judgment liens are neither impaired nor taken away by an appeal, as in this case. (Planters’ Bank v. Calvert, 3 S. & M., 143; Kilpatrick v. Dye, 4 Ib., 289; Montgomery v. McGimpsey, 7 Ib., 557; see also Thompson v. Kercheval, 10 Humph., 322; Furbu v. Carter, 2 Sneed, 1.)
In the case of the Planters’ Bank v. Calvert, 3 S. & M., 212, Mr. Justice Thrasher, in delivering the final opinion of the court, says: “The constitution declares, that the high court of errors and appeals shall have no jurisdiction
“The lien which by law a judgment gives is a vested right, which was perfect at the date of the judgment below. It can be lost only by the act or consent of its beneficiary. The affirmance is but a repetition of judgment, and the damages thereon constitute but a penalty for the vexation of delay. They are incidents to the appeal, but not parts of the original' judgment.”
We are therefore of opinion, that the transcript of the record presented to appellee showed a valid claim against the estate of his testator, which should have been admitted and recognized by him for the amount adjudged in favor of said Coopwood, as the administrator of said John 0. Cherry, by the decree of the vice chancery court at Fulton, but not for the amount adjudged against the administrator of said Pruitt by the high court of errors and appeals; and consequently the first and second charges given to the jury, at the request of the appellee, must be pronounced erroneous.
By the third instruction, also given at the request of appellee, it was incorrectly ruled, that unless notice of the judgment were given to the administrator of the estate of Pruitt, in Mississippi, within the time prescribed by the statute of that State barring claims, notice of which is not given to the representative of the estate as required bylaw, the judgment would likewise be barred as against the
There was no error in overruling the objection that appellants’ claim had not been properly presented to appellee for allowance against the estate of his testator, because the affidavit thereto had been made by William C. Coopwood, the administrator in the State of Mississippi of the estate of John 0. Cherry, deceased. As a foreign administrator cannot as such prosecute suits in this State, to collect dioses in action due his intestate, he cannot verify claims for the purpose of having them recognized or established against the administrator of the debtor. (Cobb v. Norwood, 11 Tex., 556.)
But in the case now before us the judgment upon which the action was brought was rendered in favor of Ooopwood. The- right fixed by it is vested directly in him. He might have brought suit upon the judgment in his own name. If it were not for the equitable power of our courts, the appellants could not bring the present suit in their own names.
The judgment is reversed, and the cause
Remanded.