15 Tex. 460 | Tex. | 1855
It appears from the record, that there was a former suit between the same parties, for precisely the same subject matter, which commenced in the Probate Court, where judgment was rendered against the appellee in this suit, from which he appealed to the District Court, in which Court the judgment of the Probate Court was affirmed. The appellee, then brought this suit. Among other defences, the defendant set up the former judgment, in bar, and also the statute of limitations. If the former judgment embraced the same cause of action, and the Court had competent jurisdiction to make the adjudication on the merits, its conclusiveness cannot be questioned in a collateral way, so long as it remains unannulled or reversed. The former suit, as it has been stated, commenced in the Probate Court, by the petition of Millican, making opposition to the final settlement by the executrix, and closing the estate of her testator, alleging that he had moneyed claims against the estate, that had been presented to the executrix and allowed by her, that had not been paid, and praying that the executrix be required to sell a portion of the property of the estate sufficient to pay the amount of his claim. The case, after lingering some years in the Probate
Reversed and re-formed