21 Tex. 133 | Tex. | 1858
Although it appears by the record that the Court heard evidence, and thereupon dismissed the case, “ because it appears to the Court that the plaintiff has no right to maintain his action herein,” it is sufficiently apparent, that the Court did not pronounce its judgment upon the merits of the case as disclosed by the evidence; for, had that been the case, the judgment would not have been that the petition be dismissed, and the defendant go hence, &c., as upon a judgment sustaining a demurrer or exceptions to the petition ; but judgment would have been rendered for the defendant, as on a trial upon the merits. But if the Court decided the case upon the evidence embraced in the statement of facts, the judgment was plainly erroneous; unless supported by the record of the decree rendered in the United States District Court.
In the cases in which this subject has come under discussion in this Court, the exception we are now considering has never been adverted to. The attention of thé Court has not been called to it in any previous case, or it would, doubtless, have been recognized. And it is believed there is no adjudication of this Court which stands in the way of its recognition in the present case. No case has been decided the contrary. The view we have taken of the case, as respects the right of the administrator to maintain the action, supercedes the necessity of revising the judgment upon the appeal of the intervenor. The petition alleges that the estate is largely indebted, and that there are no assets other than the property in question. The administrator must be regarded as representing the creditors in this action. And we are of opinion that the Court erred in denying his right to maintain the action and dismissing the case. The judgment is therefore reversed and the cause remanded.
Reversed and remanded.