4 Tex. 242 | Tex. | 1849
Abdbey, S. J.
This was a suit "brought by William M. Loyd to the Spring Term 3837, of the District Court of Nacogdoches county, against the appellant, William Gowings, for the recovery of certain negroes described in his petition. There was issued a writ of sequestration in the cause, which was levied upon the said negroes, which were replevied by said appellant. At the following September Term of the-said court Gowings appeared and died his answer, and the cause was continued. At the March Term, 183S, of the said court the plaintiff, Loyd, applied to the court, and obtained a change of venue to San Augustine county. At the March Term, 1838, of the District Court of San Augustine county, the defendant, Gowings, by his attorney, appears and files another answer in the said cause. Tile canse was then continued from term to term until the March Term, 18-10, when there was a jury trial had, and a verdict for (lie plaintiff. A motion was then made to set aside the verdict and to grant a new trial thereon, which was done by the court. No further proceedings appear to have been had in the cause from the time of setting aside the verdict and granting of the new trial until the September Term, 1841, of the said court, when the following' proceedings were had, as stated in the transcript of the record:
“District Court. September Term, 1841. Present, lion. George W. Terrell, judge. Elijah A. Loyd, administrator of the estate of Wm. M. Loyd, deceased, v. William Gowings. Sept. 28th. Aud now at (his day appeared the parties, by their attorneys, and this cause came on to be tried. Thereupon came a jury of good and lawful men, to wit, Sampson Holloway aud others, who were duly impaneled and sworn to try the issue joined, &c. And there not being sufficient time to complete the argument, by consent the jury was discharged, under charge of the court, until to-morrow morning, nine o’clock. Elijah A. Loyd, administrator of William M. Loyd, deceased, v. William Gow-ings. Sept. 29th. The jury met pursuant to adjournment, and the trial of the cause was again taken up, and the argument of counsel heard. The jury retired, and after being out a short time returned into open court the following verdict, to wit: ‘ We, the jury, find a verdict in favor of tiie plaintiff, for the property in controversy. September 29th, 1841. S. IIOLMAN, Foreman.’ Ordered by the court that the verdict of the jury be recorded; and further ordered that the plaintiff recover of the defendant the property as mentioned and-set forth in plaintiff’s petition, to wit, Sally or Sarah, a negro woman aud the mother of Louisa, a girl, and Julian, a'girl, and Eli, John, and James, boys, and all the children of the said Sallie or Sarah, together with all the increase of tile said negro slaves. And it is further ordered and adjudged and decreed that the said defendant deliver up said negroes as above named,*243 together with their increase; and further, that a writ of possession issue in favor of plaintiff, and that the defendant pay all costs about this behalf expended.”
Prom tlie views taken bj tlie courts of this case it is unnecessary to discuss the various points presented by the brief-! of counsel, or tlie several questions suggested by tlie assignment of errors, wlijr the judgment of tlie court below should be reversed. It appears that the suit was originally commenced and prosecuted by William 31. Loyd, in his own name, until after the first verdict and tlie granting of a new trial thereto. After that term, and "before the second verdict and the judgment of the court thereon in favor of “Elijah A. Loyd, administrator of the estate of William 31. Loyd, deceased,” there was no suggestion made upon the docket that William 31. Loyd was dead, such as would authorize Elijah A. Loyd to be made a party, either by his voluntary appearance into court and making himself a party to tlie suit upon such suggestion or by the issuance of a scire facias, under the 1st section of the act of Congress, approved 24th May, 1838, entitled an act representing the abatement of suits. (2 vol. Tex. Laws, 135.) That section provides “that when any party may die pending any suit in any, of tlie courts of this Eepnblic, the suit shall not thereby abate; - but upon the death being suggested upon the docket, it shall and may be lawful to issue a scire facias, returnable to tlie next term of the court; which being served upon tlie executor, administrator, guardian, curator, or heir, they shall be made parties to said suit.”
To authorize tlie intervention of a third person to come into a suit and become a party thereto, there must be a proper legal ground made upon tlie record; and in the case of tlie deatli of one of tlie original parties to the suit, it must bo by a suggestion of the death of that party upon the docket. If it was tiie deatli of tlie plaintiff, his representative might be permitted to waive the issuance of a, scire facias and its service, as required by the statute, and enter voluntarily himself a party; but at least it could not be done without first making tlie suggestion of tlie deatli, as required. If it were tlie death of tlie defendant, tlie suit could only be prosecuted against his representative by the suggestion of his death upon the docket and the issuance and service of tlie writ of scire facias. 'This would be tlie only legal means to make a party, unless the representative should choose to make a voluntary appearance after the suggestion.
No suggestion of tlie death of William 31. Loyd upon the record appearing to have been made in this cause, tlie rendition of tlie judgment of the District Court in favor of Elijah A. Loyd, as his administrator, against tlie appellant, was clearly erroneous.
For tliis cause of error the judgment of the District Court will have to be reversed and the cause remanded'for further proceedings in the court below.
Judgment reversed.