33 Tex. 198 | Tex. | 1870
The bond for costs required by the statute was not given in this case before the obtention of the writ of error. (See Paschal’s Dig., Art. 1517.) It was not necessary that the administrators should execute such bond. But it was necessary for all the co-defendants to execute such bond before they could invoke the action of this court. The judgment in the district court was taken by default against R. B. Dawson, Sarah Y. Dawson, 17. O. Millican, and the administrators of Wesley J. Millican, a deceased obligor, upon a joint and several note; and execution was ordered against the administrators, J. H. and A. H. McGregor, as well as against the surviving obligors. This was certainly error. This court therefore will dismiss the writ of error as to all the surviving obligors, because of the want of the bond for costs, and reverse and reform the judgment, as to J. H. and A. H. McGregor, by ordering that it be certified for payment by the administrators in due course of administration.
Ordered accordingly.
Mills Tevis, for plaintiffs in error, moved for a rehearing on the following ground :
First—-As the administrators of defendant, Millican, have been decided to be properly before the court by their writ of error, so they claim a right to have the judgment below reversed because a default was taken against them, over their answer filed in time, in which answer they set up that their intestate was a surety in the note sued on; and further, a general denial, which privilege is allowed by statute.
Second—They have a right to reversal, because the recox’d shows the judgment to have been rendered in favor of a dead man (Brashei1, administrator,) whose death was suggested at a term- preceding the one at which judgment was rendered. Henderson Hax’dy, administrator of plaintiff below, nowhex-e appears as plaintiff in the judgment. Save in one or two places, the whole case is
Third-—It is true this court reformed the judgment below so as to order the judgment to be paid in the due course of administration out of W. J. Milliean’s estate still, that estate will lose the benefit of a suggestion of its suretyship of the original defendant set up by them in the case.
Fourth—The judgment which this court has entered on the transcript, is an affirmance of a judgment in favor of a dead man.
■ II. Hardy became a party before the judgment, not after, and though he became % party, the proceedings continued in the name of Brasher, administrator, whose death was suggested at former term.
Therefore, to maintain congruity in legal proceedings, this judgment against the administrators, over their answer, and further, for the reasons stated above, should be reversed, and the judgment below being indivisible, as shown by the briefs, should be reversed as to all the defendants below.
This application has been examined, and it does appear that the judgment in the court below was entered in the name of S. C. Brasher, administrator, instead of H. Hardy, who was appointed administrator upon the death of Brasher. Hardy had been made a party in his stead, and the judgment ought to have been entered in his name. The judgment is further reformed, therefore, by substituting the name of H. Hardy, administrator, etc., in the place of S. O. Brasher, in the judgment. The plea of suretyship set up in the answer of the administrators of W. J. Millican, deceased, can still be tried in the court below. The law did not allow that plea to delay the judgment in that court; nor does it affect the reformation of the judgment in this court. (See Artide 4785, Paschal’s Digest.)
Prehearing refused.
