Wygal v. Myers

76 Tex. 598 | Tex. | 1890

COLLARD, Judge.

Appellants contend that the court erred in holding that the judgment rendered in the District Court of Wharton County December 12,1874, in favor of Lucretia Johnson, the mother and next friend of the minors Scott, Posey, Forest, and Lilly Myers, against the estate of Jackson Rust, deceased, was.a vaild and subsisting claim against said estate in favor of claimants, the judgment being in favor of Lucretia-Johnson, by whom no rights under the judgment are claimed in this proceeding, she not being a party to this suit.

We deem it sufficient in response to this assignment of error to say that it is apparent that Mrs. Johnson sued for a right of the minors, styling herself their mother and next friend. As such she recovered judgment; she acquired no interest in the judgment, has none, and was not a necessary or proper party to this proceeding; the minors were the only beneficiaries.

The appellant can not complain that the court admitted the judgment, in evidence, because it evidenced only a right in the minors whose application was before the court and corresponded with the allegations made. For the same reason it was not necessary, in reply to contestants’ plea of limitation, to set up any disability in her to sue. Besides this, limitation did not apply to the judgment; it was rendered against the administrator of the Franks estate, which was in course of administration in the courts under the probate laws of the State, which withdrew it from the operation of laws ordinarily controlling as to dormancy of judgments and their period of limitation. Birdwell v. Kaufman, 25 Texas, 191. When once the claim was duly established as a valid claim against the estate, the laws of limitation could no longer apply while the estate was being administered under the probate law. The judgment needed no revival as against the estate; executions could not issue, and the laws requiring them to issue to keep the judgment alive and to prevent its being barred were, so far as the estate was concerned, suspended during administration. There was and had been no reason to revive the judgment by scire facias against tlieestate. Had there been an application to revive the judgment against the sureties on the bond, that proceeding might have required the estate to-be joined, in order “to pursue the nature of the original judgment.” Austin v. Reynolds, 13 Texas, 544; Carson v. Moore, 23 Texas, 450; 24 Texas, 358. Of this we express no opinion.

The law in force at the time the judgment was rendered (the Act of 1870) as to probate matters declared that when a judgment was rendered against the estate the claim was established (2 Pasch. Dig., art. 5667), and we do not think its validity as such claim was affected by the provision of the same act that required such a judgment to be filed .and classified by the Probate Court (2 Pasch. Dig., art. 5661), nor was it affected as to limitation by the Act of 1876 (carried into the Revised Statutes by article 2029), which required it to be filed with the county clerk within thirty days after its rendition, entered on the claim docket, and classed by the probate judge, so as to give it the same effect as if allowed and approved. The claim had been duly established by the laws in force at the time the judgment was rendered, and that was sufficient so far as limitation could affect it. It was filed and classified under King’s administration in this proceeding, and the administrator ordered to sell the land in accordance with the foreclosure, and nothing more was necessary.

The appellants can not be held to have ratified the illegal pretended settlement of the judgment by their mother (who executed a receipt to-the administrator in payment of the debt for a tfact of land belonging to the estate) by their complaint of forcible detainer of the land. The estate of Frank was not bound by the settlement. Rust, the administrator, had no authority without an order of the court to surrender the land or any part of it in satisfaction of the debt, and the proceeding by the heirs, of forcible detainer, could not have bound the estate and conferred upon them the title. The proceeding stopped with the complaint.

Appellants contend that the suit in the District Court by Mrs. Johnson as next friend of her minor children could not be maintained, because she was not their legal guardian, and had not at any stage of the suit been appointed their special guardian or guardian ad litem.

It was decided by the Supreme Court in the case of Brooke v. Clark that where the statute requires the appointment of a guardian ad litem to represent a minor in a suit, it should be strictly followed; yet, when “a judgment was rendered in the District Court in favor of a minor represented by next friend, no special guardian having been appointed, the next friend having been recognized by the court throughout the proceeding as the proper representative of the minor, without objection by the adverse party, the failure to appoint a special guardian will be regarded as an irregularity only, and not such as to require a reversal of the judgment when urged for the first time after appeal.” 57 Texas, 105; Acts of 1870, Pasch. Dig., arts. 6969-73.

In the case before us there is a much stronger reason for sustaining the judgment, because the question is here raised in a collateral attack upon the judgment. The judgment was final, and we can not hold that it was void, or that it should not be enforced because rendered in favor of a next friend of minors.

We have disposed of all the questions of any importance raised by the assignment of errors, and finding no error in the judgment of the court below, conclude it should be affirmed.

Affirmed.

Adopted March 25, 1890.