Cochrane v. Day

27 Tex. 385 | Tex. | 1864

Moore, J.

The petition for a writ of error in this case is glaringly defective, and the motion to dismiss it must be sustained. The practice of this court in dispensing.with merely formal averments, or such as are unimportant for the protection of the opposite party, in petitions for writs of error, has always been justly liberal. But it has also been held that the petition or citation must describe the judgment with sufficient accuracy to notify the defendant, with reasonable certainty, what judgment it is proposed to revise. And when one seeks to reverse a judgment to which he is not a party, he must, by proper averments, show his right to do so. (Graham v. Sterns, 16 Tex., 158 ; Thomas v. Jones, 10 Tex., 52.) The petition for a writ of error in this case neither gives the nature or character of the suit, its number on the docket, or the amount of the judgment. The statement in the petition is, there was a judgment obtained against the estate of their said father, on or about the 25th day of April, A. D. 1854, in a certain suit described above,” referring, doubtless, to the title of the suit placed at the head of the petition, which is “ Emeline Day and William S. Day, her husband, v. The Estate of James Cochrane, deceased.” An inspection of the record shows that the description is not only vague and imperfect, but is, in fact, erroneous and calculated to mislead. The natural inference from this description would be, that the suit to which reference is made, was between Day and wife and the personal representative of Cochrane’s estate. It would hardly be supposed from the petition, that Mrs. Day was the administratrix of the estate, and that the judgment in question was rendered in a proceeding, by which the statute authorizes an administrator to establish a claim for money due him by his intestate.

Neither is the petition sufficiently full to show that Cochrane’» children had a right to prosecute the writ of error, or that there is a necessity for their so doing. For this purpose it was certainly necessary to have alleged that the suit against their father’s estate had been brought by and on behalf of its personal representatives, and that the plaintiffs still occupied that relation to it, or, at least, that no other person was, at that time, the representative of it. The petition is also defective, in so far as William W. Cochrane seeks to prosecute it as guardian of the two minor children; the mere averment that he does so as guardian is insufficient. (Thomas v. Jones, supra)

We are of the opinion that the writ of error be dismissed.

Writ of error dismissed.