Clark v. Hopkins

34 Tex. 139 | Tex. | 1871

Ogden, J.

This suit" was instituted in a" justice’s court in Red River county, in the name of E. West for the use of James H. -Clark, and, against R. M.. Hopkins, the appellant. A judgment was rendered against the defendant for the sum of ¡$88, who sued •out a writ of certiorari from the district court, to correct what Was claimed to be an erroneous judgment. At a subsequent term of the district court, on motion of the plaintiff the writ of certiorari was quashed and the cause dismissed. And from that judg- • ment the-defendant below has appealed, and now assigns as error the-ruling of the court below.

The reasons for the rulings of the court in quashing the writ and dismissing the cause are not specifically disclosed, but the motion to dismiss is based upon two grounds. The first is, that the petition for the certiorari does not properly describe the title to the suit it seeks’ to correct. There is some obscurity in the record in ’ this respect, but it clearly appears that the suit was •originally commenced in the name of E. West for' the use of James H. Clark, against R. M. Hopkins. West died, whether before or after judgment in "the justice’s court is not made abso- ; utely certain by the record, but in the district court his death ■.was suggested, and the cause proceeded to judgment in the name of Clark. Under oúr statute, where suit is brought in the nam of one person for the usé of another, the party in whose name the suit is brought is a mere nominal party, and the person for whose . use the suit is brought is the real party; and on the death of the nominal party the suit shall not abate, nor is it necessary to revive the suit in the name of the representatives of the deceased, but in . the district court, upon the mere suggestion of the death of the nominal party, the suit shall proceed in the name of the real party. In the case of McFadden v. McGreal, 25 Texas, 79, this court held, that the nominal party is not to be deemed, for the . purposes of litigation, a party to the suit; and in the case of Heard v. Locket, 20 Texas, 163, it is strongly intimated that.the real party might at any time throw off his fictitious shelter and demand his rights in his own name.

In the district court the statute makes it necessary, on the death of the nominal party, that his death should be suggested on the' record. But in the justice’s court, where the records are, as in this case, exceedingly imperfect, and often quite, uncertain, it may well be doubted whether that mere formality should in all cases . be- strictly adhered to, and more, especially when the cause is attempted to be brought into the district court for correction. Clark was the real party to the record and judgment, and the justice swears to the identity of the parties and the suit; and we are of the opinion, the description of the suit, as set out in the petition, . is not so variant with the suit before the justice’s court, as would authorize a dismissal of the same. '

: . The only, remaining question raised by the motion to quash, that need now be noticed, is, that the record fails tó show that défend ant used that diligence, in pursuing his remedy in the justice’s court, which the law requires. In the case of Ward v. McRimmond, 12 Texas, 319, the court held, that if the petition shows that a defendant had a good defense in the justice’s court, and that an illegal or inequitable judgment has been rendered against him, it is not necessary that the petition should show any diligence in prosecuting his defense in the justice’s court, or that he filed a motion for a new trial. In the case at bar we think the petition shows most clearly that there was no case made out in the justice’s court, and that the defendant had a good defense to the action as proven by the plaintiff; and to the petition is attached the affidavit of the justice before whom the cause was tried, showing that the judgment was rendered upon a misapprehension of the facts, and that the same is erroneous. We are therefore of the opinion that the certiorari was properly awarded, and that the ^district court erred in quashing the same and dismissing the suit. The judgment is reversed and the cause remanded.

Reversed and remanded.