Smith v. Gerlach

2 Tex. 424 | Tex. | 1847

Hr. Justice "Wheblee

delivered the opinion of the court.

Suit was brought by the plaintiffs as indorsees of Elisha Eloyd, upon the promissory note of the defendants, for the payment to him, Floyd, of five thousand and seventy dollars.

Judgment was rendered for the plaintiffs for only half the amount expressed in the face of the note, that being the alleged value of the nominal amount of the note in the promissory notes of the government. The plaintiffs excepted to the opinion of the court, and the defendants appealed, but neither party took any further steps to bring, up the cause for revision.

Subsequently Eloyd, the payee and assignor of the plaintiffs, prosecuted in his own name this writ of error, and now asks a reversal of the judgment. The plaintiffs insist that there is no error in the judgment; but submit for our decision a preliminary question as to the right of Eloyd to maintain this writ of error.

Eloyd, the only party seeking to disturb the judgment, was no party to the suit in the court below; nor does he appear from the record to have had any interest or privity with the parties in interest in that court. “ Ho person can bring a writ of error to reverse a judgment who was not party or privy to the record, or who was not injured by the judgment, and therefore to receive advantage by the reversal thereof.” 1 Tom. L. D. 649, cites 1 Foil. Abr. 747; and see 8 Oow. 338; 4 Mass.- 611.

As recognized by our laws, it is believed that this writ can only issue at the instance of a party to the suit, or of one whose privity of estate, title or interest appears from the record of the cause in the court below, or who may be the legal representative of such party. That the writ of error in our practice is but another mode of appeal, see Cheek & Collins v. Rogers, 1 Tex. 440, decided at the last term. Such is .not the case of the party prosecuting this writ of error.

His petition for the writ of error does indeed allege that he is interested in tlie judgment, and exhibits what purports to be an agreement signed by the plaintiffs, stipulating that in case the debt could be collected in “ good money,” they were to retain three thousand dollars and interest thereon, and pay over to Floyd the residue; and that every reasonable exertion should be made to collect good money. But this is-a mere ex parte representation, made to the judge on the application for the writ of error. Neither party to the record was afforded an opportunity in the court below to controvert the allegations of the petition for this writ, and cannot do so-liere, for the plain reason that we have no jurisdiction to try the issue.

The consequence of maintaining this proceeding would be that any person may bring a writ of error to reverse any judgment, though a stranger to the record and wholly without interest. It will be only necessary that in his petition for the writ he aver an interest.

All the parties to the record in the case before us, both, plaintiffs and defendants, rest satisfied with the judgment. Floyd, who alone prosecutes this writ of error, is not the representative of either party; had no apparent interest in the cause; and does not prosecute the writ in the name of either party to the record, but in his own name, and appears-to have proceeded and still to be wholly without authority from either party to disturb the judgment of the court below. 2 A. K Marsh. 118; 3 Bibb, 433; 1 Stew. & P. 253; 2 id. 24; 1 Port. 77; Minor, 285; 11 Mass. 379.

This writ of error must, therefore, be dismissed.