46 Tex. 23 | Tex. | 1876
The authentication of the claim sued on in this case appears to have been in compliance with the 12th section of the act of the 13th Legislature amending the probate law of 1870, (Gen. Laws 13th Leg., 113,)
We do not think that this statute changes the rule settled by repeated decisions under the probate law of 1848, which allows an administrator, if he sees fit to do so, because of his knowledge that as a matter of fact the affidavit is made by the proper party, to accept a claim so authenticated, and holds him to have waived such an objection to the affidavit, unless made when the claim is presented. (Walters v. Prestidge, 30 Tex., 74; Dunn v. Sublett, 14 Tex., 521; Shelton v. Berry, 19 Tex., 154.)
The withdrawal by the administrator of his answer and his consent that the judgment be entered up, may be regarded as equivalent to his allowance of the claim, when, as in this case, the claim is properly authenticated and the evidence necessary to its establishment is an instrument of writing set out in the petition, it is not error for the court to enter judgment by default or by consent.
The objection that the heirs of the deceased should have been made parties may be disregarded, as (if indeed they were proper parties) no such objection was made below, and no such point is assigned as error.
There is, however, error in the judgment of the court, in that it awards execution against the estate through the administrator, and also directs an order of sale to issue to the sheriff. It was not competent for the administrator to consent to such a judgment, and it was error for the court to enter it up. (Cunningham v. Taylor, 20 Tex., 126.)
This, however, is an error which may be corrected without remanding the case. (Thorn v. The State, 10 Tex., 295.)
It is accordingly ordered that the judgment be reversed and reformed, (at the cost of the appellee,) so as to establish the claim and the lien on the lands described in the petition,
Judgment reformed.
