44 Tex. 573 | Tex. | 1876
Section 428. of an “Act prescribing the mode of proceeding in District Courts in matters of probate ” provides that “any person interested may, by a bill of review filed in the court in which the proceedings were had, have any decision, order, or judgment rendered under this act revised and corrected, on showing error therein.” (Paschal’s Dig., arts. 5791, 5792.)
It is not our opinion that a petition formed under this article must conform to the requisites of a bill of review in a court of chancery, nor do we think that the error to be shown in such a petition must necessarily be error of law apparent on the face of the proceedings. If the petition sets
In this case the petition, as amended, set out the application of the administrator for authority to consummate a compromise with defendants, Jacobs and Meyer, which application was embraced in his final account, and that the court, by decree made December 2, 1811, approved said final account, and discharged said administrator upon his filing the receipt of plaintiff’s attorney for the sum obtained under the compromise. Facts are also alleged which, if
To this suit we think that Jacobs and Meyer were proper parties. It is stated in the petition that the defendants claimed that, by the action had in the Probate Court, petitioner was estopped from collecting the balance due on said judgment. But even if they were not necessary parties, this would not justify the action of the court in sustaining general exceptions to the petition, which should, at all events, have been held sufficient as against the administrator.
The petition, however, prays for other relief, to wit, that the compromise be annulled, and that plaintiff, in the name of the administrator, be allowed to collect the balance of the judgment. If, on hearing the evidence, the court should see fit to set aside its orders approving the administrator’s final account and the compromise, and discharging the administrator, it might properly authorize the plaintiff to proceed in the name of the administrator to enforce whatever rights she may have under the judgment obtained by the administrator. But it is not our opinion that the court could in this proceeding adjudicate those rights as between plaintiff and defendants, Jacobs and Meyer. The suit to ■ collect the debt claimed to be due by Jacobs and Meyer was brought in the District Court of Harris county, where those defendants reside; the judgment was obtained in that court; and we think that the attempt of the plaintiff to transfer
The right of plaintiff to have the orders of the court in the settlement of the administrator’s final account set aside is not dependent on the previous return by her to the administrator of the amount received under that settlement. Whether it would be necessary to tender such return in a proceeding in which the compromise could be set aside, it is not material to inquire.
Because the court erred in sustaining the exceptions to the petition as herein set forth, the judgment is reversed and the cause remanded.
Reversed and remanded.