11 Tex. 249 | Tex. | 1853
The question, to be determined, is, as to the propriety of the ruling of the Court, upon the exceptions to the petition.
The statute makes it the duty of the Chief Justice of the county, to fix the amount of the allowance for the year’s support of the widow and children, or widow or children, of the deceased, at the first Term of the Court after the grant of letters testamentary or of administration; and to set apart, for their use, the property exempt from execution or forced sale, at the first Term of the Court after an inventory and list of claims has been returned. (Dig. Art. 1153, 1154.)
The law, in its terms, makes the duty absolute and impera
The objection that there was a misjoinder of parties is not tenable. It was proposed to bring in question the validity of the sale under which the defendant Fuller purchased. And it was certainly proper to make him a party to a proceeding
If this were an action of trespass to try title to the land sold to the defendant, there would be force in the objection that it was not sufficiently described in the petition. But, considered as a proceeding to revise and correct the proceedings of the County Court, and to set aside the order of sale, a particular description of the property sold was not necessary.
But if, in order to enable the Court, when it shall have obtained cognizance of the case, to set aside the land to which the plaintiff’s wards are entitled, and to render a decree which shall do complete justice between all the parties, a particular description of the land in question be necessary, it is given in the amended petition. The amendment fully obviates this objection. To this it is objected, that it does not appear to have been filed with the leave of the Court. This is an irregularity ; but not such an one as should deprive a party of his right. It is the right of a party to amend, subject only to the qualification that the amendment be proper and in proper time. The leave of the Court is a matter of course. Its only object is to give notice of the proposed amendment. Its omission—the frequent result of inadvertence in the preparation of amendments—should not deprive a party of the benefit of his amendment, unless the omission has been the occasion of surprise or prejudice to the opposite party.
We are of opinion that the exceptions to the petition were not well taken; and that the Court erred in sustaining them; for which the judgment is reversed, and the cause remanded.
Reversed and remanded.