Fordyce v. Dixon

70 Tex. 694 | Tex. | 1888

Stayton, Chief Justice.

This action was originally brought by W. M. Dixon, with leave of the circuit court of the United States, against W. R. Woodward, receiver, appointed by that court to conduct the business of the Texas &St. Louis Railway Company, to recover damages for injuries alleged to have been received by his wife while a passenger on the train operated by the receiver.

Woodward resigned, and the plaintiff in error was appointed to the receivership in his stead, and made party defendant. Dixon died pending the action, and his wife, in her own right, and as next friend for their minor children, prosecuted the action to final judgment. No exceptions were taken and acted upon to the making of parties plaintiff or defendant, and a judgment was rendered in favor of the plaintiffs.

There is no statement of facts, and the assignments of error are not signed by counsel or the plaintiff in error. Rule 97 requires an assignment of error to be signed by the party or his counsel, and one not so signed can not be considered.' In this state of the record, only error fundamental can be considered.

Although the damages to be recovered for injuries to the wife would have been community property, the cause of action did not cease upon the death of the husband. The wife and children doubtless succeeded to such rights as were held by the husband and wife, and if they were not the proper parties to prosecute the existing cause of action, a matter which •need not be considered, objection should have been made in ■proper time and manner. The charge of the court shows that the recovery was restricted to such cause of action as would survive the death of the husband.

Opinion delivered May 11, 1888.

The permission of the circuit court of the United States to .bring the action against its receiver, would apply to the receiver appointed on the resignation of the receiver acting at the time the permission was given. If, however, this were not so, and it be conceded that such permission should have been re-obtained, the failure to get this would not be such error as would require a reversal of the judgment, in the absence of exceptions urged at the proper time and in proper manner, and- in the absence of assignments of error. .

There is no errer apparent on the record, requiring a reversal of the judgment, and it will be affirmed.

-4firmed.