Case No. 3455 | Tex. | Oct 24, 1882
The cause of action, and question involved in this cause, is thus stated by plaintiff in error in his brief:
“ The only question in this case, and the one on which it was decided in the court below, is this: The plaintiff Gibson had an account against the estate of Jacob F. McCarty, deceased, for $1,544.07, which, after proper authentication, he presented to McCarty’s administrator for allowance. The administrator allowed the account to the extent of $196, and rejected it as to the balance;*407 on this partial allowance Gibson procured the approval of the judge, and the administrator soon thereafter paid him the amount. Gibson then (and within ninety days from the date of rejection) brought this suit to establish that portion of his account which had been rejected, and the facts as here stated are averred in the petition. To this petition the defendant filed a general demurrer, which the court sustained, on the ground that the approval by the judge of the partial allowance of $196 was res judicata as to the whole claim, and that thereby Gibson was estopped from further prosecuting the same. And this is the point presented by the assignment of errors.”
This statement may be taken as substantially correct.
The general rule is, that a judgment rendered upon a cause of action sued upon, for less than the entire sum claimed, is a bar to another action upon any part of the cause of action upon which the first suit was brought, and that the original cause of action is merged in the judgment.
The petition avers that the cause of action in this cause is identical with the account presented to the administrator and by him in part allowed, and which was afterwards affirmed by the probate court, and whether it was an indivisible cause of action or not is immaterial; for the petition in this cause does not show what items of the account now sued upon were established by the judgment of the probate court, and paid by the administrator before the institution of this suit; but upon the contrary, this suit is brought upon the entire account originally presented to the administrator, and a credit is allowed upon the entire account for the money paid.
If certain items of the account had been approved and allowed, and the residue rejected, and it was admissible even in such case to bring a suit for the part rejected after the part allowed had passed into a judgment and had been paid, even then it would be incumbent upon the plaintiff to omit from the present action such items as had been paid; for the plaintiff had nb cause of action upon such items after their payment, and it cannot be contended that the money paid by the administrator was paid upon the general account, without at least an averment that such was the fact. The petition was so uncertain in reference to the items of the account which had not been paid, that the court would not have erred in sustaining the general demurrer thereto upon that ground, and upon the ground of its inconsistency.
We will consider, however, the effect of the judgment of the probate court.
The allowance of a part of the claim, and the approval thereof, occurred under the act of August 15, 1870. The 197th section of
Another section of the act provides that “ When a claim or a part thereof has been rejected, the claimant, if he do not submit thereto, shall institute, suit thereon within ninety days after its rejection by the executor or administrator, or the same shall be barred.” Pasch. Dig., 5659.
The probate court was not wanting in jurisdiction over the subject matter of the whole claim, but the manner in which it was presented to that court for its action rendered it impossible for it to approve any more of the claim than had been allowed by the administrator.
Upon the rejection of a part of the claim the holder could have the claim become a judgment of the probate court in so far as the administrator had allowed it, or he could sue upon it in the district court and take such judgment as that court might render in his favor.
He elected to submit to the rejection, and thus permitted a judgment upon his claim, and there is no good reason why, having so elected, such a judgment should not have upon the entire claim “ the force and effect of a judgment” rendered in any other than the probate court. Freeman on Judgments, 319a, 215, 216, 222, 239, 249 ; Brazier v. Banning, 20 Pa. St., 348.
The plaintiff in error was under no legal obligation to present his claim in its partly rejected condition to the probate court; but by electing to do so, he gave that court the power to render a judgment upon his claim, which has been by him throughout treated as indivisible, and he must be held bound and concluded, by its judgment; for there can be but one final judgment in the case. R. S., 1337.
By presenting his claim to the probate court, after the rejection of a part thereof, he must be held to have “ submitted ” to the rejection. If such was not his intention, he should have sued upon his entire claim in some court in which he could obtain a judgment thereon, if entitled to it.
It was never contemplated that persons might litigate a claim against estates, which they may and have presented for allowance and approval as one single claim, by parcels and in different courts. Such a course would introduce into the business of estates such uncertainty and expense as was never contemplated.
The judgment of the probate court must be held a bar to the present action.
The judgment is affirmed.
Affirmed.
[Transferred to Tyler, and opinion delivered October 24, 1882.]