35 Tex. 21 | Tex. | 1872
In January, 1867, Annie W. Branch rented a certain plantation to B. W. Durdin for one-year, and took his note for the amount of the rent, payable to herself on the first day of November following.. B. W. Durdin died in October, 1867, and Annie W. Branch, the payee of the note, died in the early part of the same year. In February, 1868, appellees, as administrators of the estate of Edward T. Branch, sued out a distress warrant, before a justice of the peace, against the estate of B. W. Durdin, to satisfy a balance due on said note, and had the same levied on certain cotton, the product of the rented premises, and other property belonging to the estate of B. W. Durdin, deceased. The amount due on the note being above the jurisdiction of the justice of the peace, the distress warrant was made returnable to the district "court. In February, 1868, plaintiffs below filed a petition in the district court, alleging that the note sued on was the property of their intestate, that the same was due, and unpaid, and setting up the fact that a distress warrant had been sued out, and levied on property belonging to the estate of B. W. Durdin, deceased, and prayed for a judgment for the amount due on the note, and an order to sell the-property levied on by virtue of the distress warrant.. In the same month defendant filed a general and special demurrer to the jurisdiction of the court, and to the
The defendant has assigned several errors for the reversal of the judgment, of which we deem it unnecessary to notice more than one or two. Durdin died in 1867, and the appellant was duly appointed and qualified as administrator on his estate ; and at that time the .appellees held a moneyed demand against the estate of said Durdin, which they attempted to collect by a proceeding commenced in a justice’s court, returnable to the district court. The first question presented for our determination, and which we think must be conclusive -of the rights of the parties in this suit, was raised in the district court by the defendant’s demurrer, his motion for a new trial, and repeated in his assignment of errors. Has the plaintiff pursued his proper remedy, .and the one provided by law? Under the law in force at the institution of this suit, the only mode for establishing a moneyed demand against the estate of a deceased person, and for enforcing a payment of the same,
The appellees, however, claim, that by having the-claim properly authenticated and established in the probate court, subsequent to the institution of this-suit, they thereby cured all errors in the original suit. This position only proves the wisdom of our probate law, in preventing estates of deceased persons from being devoured by the prosecution of two suits, in different courts, for the same claim. The allowance and approval of a claim in the probate court establish that claim against the estate as fully, for all purposes, as a judgment in the district court could. (Neill v. Hodge,. 5 Texas, 487.) But, if this were not the case, still the-district court had no jurisdiction of the cause when the demurrer was filed, and no subsequent act of the-plaintiffs could give jurisdiction to relate back to the-inception of the suit. We are, therefore, of the opinion that the suit was improperly brought, and that the court erred in entertaining jurisdiction of the same, at any time.
The judgment of the district court is therefore reversed, and the cause dismissed.
Reversed and dismissed.