Schmidtke v. Miller

71 Tex. 103 | Tex. | 1888

Walker, Associate Justice.

The objection to the jurisdiction of the court is not well taken. Scire facias to revive a judgment lies in the court where the judgment was rendered regardless of the residence of the defendants. It is a continuation of the same suit. (58 Texas, 474, Masterson v. Cundiff.)

Article 1248, Revised Statutes, provides that where a defendant dies before judgment, scire facias may issue to the administrator or executor and, in a proper case, to the heir of such deceased defendant, requiring him to appear and defend the suit!

It would seem that article 1249 indicates the rule, when it is proper, that the heir be cited, viz: “Where there is no administration and no necessity therefor,” taken with other statutory rules, as where suit is for land, where both heir and administrator should be cited.

The rule at common law is as given in Freeman on Executions, section 83: “Upon the death of a defendant, leaving a judgment which is not a lien on any real estate, no one but his personal representative need be made a party to the scire facias.”

The administration of estates is vested in the probate courts,, organized specially for that purpose. Interference with this jurisdiction by other courts has not been favored, and exceptions to it are but cautiously allowed. It is against the policy of our laws for the administration of estates to allow one unsecured creditor to sell under execution property to whom all other creditors in like condition have equal claims. (27 Texas, 83, Webb v. Mallard; 20 Texas, 405, McMiller v. Butler; Id., 44, Chandler v. Burdett; 10 Texas, 140, Conkrite v. Hart.)

In this case the petition alleged that deceased left assets which came into the possession of the heirs, but no allegation appears that there was no administration nor necessity for it. The judgment sought to be revived is simply a money judgment. These allegations do not show a proper case for citing the heirs. On the trial, so far as the statement of facts shows, no evidence was produced that assets were left by the deceased at his death. Without inheriting assets no liability rests upon the heir for the debts of the ancestor. It was error therefore to render any judgment whatever against the appellants upon the testimony. (62 Texas, 365, Mays v. Jones; 56 Texas, 472, Webster v. Willis.)

The case evidently was tried upon the theory that the plaintiff was entitled to call in the heirs, and to have the judgment revived upon the suggestion of the death, and the production of the original judgment after the heirs had been cited.

The judgment will be remanded. If there is an administration pending, the executor or administrator should be made parties. If none, nor any necessity for one, then such facts should appear in the pleadings. With heirs as proper parties and testimony to their having received assets, judgment would follow reviving the original, at least to the amount of assets. With executor or adminstrator as party defendant judgment would be revived, but to be paid in due course of administration.

Reversed and remanded.

Opinion, delivered June 1, 1888.