Gunter v. Jarvis

25 Tex. 581 | Tex. | 1860

Roberts, J.

This case is submitted to the court by the parties, to know whether or not it is necessary to make other parties.

The death of A. Gunter, a partner in the firm of A. & W. W. Gunter, plaintiffs in the court below and appellants in this court, being suggested, the case may proceed to final judgment in this court in the name of W. W. Gunter, as surviving partner. If, however, either party—that is, the surviving partner or the appellee—should move for a scire facias to' make the representative of. said decedent’s estate a party, it will bp awarded.

Bell, J.

On a former day of the term the death of Willis, the appellee, was suggested to the court, and his administrator, Jarvis, was made a party. The death of A. Gunter, one .of the appellants, was also suggested, and the cause was submitted to the court by the parties, to know whether or not the cause could proceed to judgment with the parties then before the court.

We decided that the cause might proceed to final judgment in the name of W. W. Gunter as surviving partner; but we said at the same time that if either the surviving appellant or the appellee moved for a scire facias to'make the representative of A. Gunter a party, we would grant the scire facias. As the cause has been again submitted, without any motion for further parties, we proceed to the disposition of it.

The only error assigned is that the court below refused to permit the plaintiffs “to amend their pleadings.” There was a motion to dismiss the certiorari for insufficiency in' the petition, and we presume that when the plaintiffs asked leave to amend their pleadings, they meant to ash leave to amend the petition for certiorari. The court below did not err in refusing to permit this to be done. We do not mean to say that there might not he a case in which it would be proper for the plaintiff in the certiorari to represent to the District Court some fact not embraced in the petition for certiorari. But the petition itself cannot be amended, so as to cure defects in it, or to supply omissions. Upon a motion to dismiss the petition, it must be tested upon its allegations as it was originally presented to the judge. The plaintiffs in this case seem to have regarded their petition as insufficient, for they do mot complain that the court erred in dismissing it.

The judgment of the District Court is affirmed.

Judgment affirmed.