20 Tex. 34 | Tex. | 1857
The fourth and seventh assignments of error are relied on to reverse the judgment in this case.
4th. “ The verdict of the jury was for an amount excessive and wholly unwarranted by the evidence.”
Upon looking into the evidence, it will be seen that the items of set-off which were excluded by the jury, were the corn and the grubbing, and preparing the land for cultivation. The evidence concerning these items was not of that forcible and perti
7th. “ The Court erred in its ruling in making the administrators parties to the suit, as shown by the record.”
The verdict and judgment in favor of plaintiff below, N. W. Burdett, were entered on the minutes of the Court on the 28th day of November, 1856. On the 29th same month a motion was made for a new trial. On the 31st January, 1857, this entry appears: “ On motion, the representatives of the plaintiff, Newell W. Burdett, deceased, are made parties plaintiff to the record in this cause.” On the third of February, 1857, the motion for new trial was overruled and defendant (below) gave notice of appeal to the Supreme Court. On the 5th day of February, 1857, the attorney for plaintiff below files a motion suggesting the death of the plaintiff below, N. W. Burdett, to have occurred on the 28th day of November, 1856, and representing that Giles H. and Jesse Burdett had been appointed administrators, and moves that they be made “ party plaintiffs” to said judgment. On the 6th February, 1857, the Court made an order as follows: “ And now, on this day, came the parties to this cause by their attorneys, and the motion of plaintiff’s attor-' ney to make the administrators of N. W. Burdett, deceased, parties plaintiff to the judgment heretofore rendered in the cause at the present Term of this Court, coming on to be heard, thereupon it is ordered by the Court that Jesse Burdett and Giles H. Burdett be and they are hereby made parties plaintiff in said judgment, and that execution issue in the name of said administrators.”
It was doubtless the intention of the Court to ingraft this order upon the original judgment so as to make it a part thereof, predicating its action upon the facts, which had transpired since the verdict and judgment had been entered. The question is, does the record present such facts, and in such a manner, as to authorize such action by the Court ?
The entry of the judgment in the name of N. W. Burdett was correct, although he may have died after verdict and before the signing of the minutes by the Judge. (See Hart. Dig. Art. 696.)
If, on the motion of attorney of plaintiff below, suggesting the death of Newell W., and asking his administrators to be made parties to the judgment, the Court had rendered a formal
This last order of the Court cannot properly be said to be a judgment of revival under the statute cited; but must have been entered under a later statute, (approved Feb. 5, 1853,) which provides for an informal mode of making parties to a judgment, when the plaintiff shall die after judgment. (Sec. 130 of said Act.)
This requires no action of the Court. It authorizes the clerk to issue execution, “ upon an affidavit of such death being entered of record or filed with the clerk, by such legal representative or the attorney of record of such plaintiff, together with a certificate of the appointment of such representative under the hand and seal of the Court where the same was made,” (Laws, 4 Leg. Extra Sess., vol. iv. page 20.) This Act may be cumulative, and substitutes the affidavit and certificate for a formal judgment of revival. The record does not show either an affidavit or certificate, upon which to found the order of the Court. The order is just what would be the legal consequence of filing such affidavit and certificate; and though unnecessary to be entered would be harmless in its effect, if such affidavit and certificate had been filed. But the same legal consequence does not follow from a suggestion of the death of the plaintiff by his attorney, and the coming in of administrators. Those acts cannot operate as a revival of the judgment, but are the first steps to be taken to revive the judgment by a formal entry of a judgment of revival, which has not been made in this case. There has therefore not been a legal pursuit of either of the two remedies, which has been provided in such case by statute.
The judgment is reversed only so far as relates to the last order requiring execution to issue in the name of the administrators; leaving the plaintiffs below to pursue their remedy upon the suggestion of the death in reviving the judgment, or to adopt the more summary remedy by affidavit and certificate; for which purpose the cause is remanded.
Ordered accordingly.
