Groce v. Herndon

Upon the application for the rehearing Mr. J ustice ¥h eeleb ■delivered the following as the opinion of the court, Mr. J ustice Lipscomb not sitting: When this cause was called for trial there was no brief or argument presented by the appellant’s counsel, as required by the rules of the court, nor any error in the judgment suggested. The case was submitted by the appellee for ah affirmance of the judgment, upon the suggestion that the appeal had been taken for delay only. On looking into the record it so appeared to us, and we affirmed the judgment. Subsequently the appellant’s counsel made his application for a rehearing, and upon cause shown his application was allowed for the purpose of receiving argument upon a question supposed to be a' [413] new question presented by the record, depending upon the ■construction of a statute. But after hearing the argument and again looking into the record, we are of opinion that the question now presented was decided at the last term of this •court in the case of Gayle and Gayle v. Ennis and Reynolds, 1 Tex. 184. There is no material respect in which the present ■case differs from that. The notes sued on were given to the assignor of the plaintiffs, and were in express terms payable to her. They could have constituted no part of the estate of which she is described as administratrix in the contemplation •of the 12th section of the act of 1840, regulating the settlement of successions, to which our attention has been ■especially called, for the plain reason that if in truth the payee was the administratrix of John Sharp, deceased, when the notes were given, they could not have been in existence at the period of his death or of the opening of the succession. Nor do we think them within any provision of the statute. We do not perceive that the question is changed by the fact, if it be so, that the consideration of the notes may have moved from the decedent. In the case referred to we decided that the administrator, to whom the note was made payable, by name, could sue upon it, either in his own name or as administrator, and that he could transfer it by his indorsement; and we see no cause to depart from the opinion then given. On a recurrence to the date of the appeal in the present case, however, it appears to have been taken before the decision in that case was made known, ■and presenting the same question, ought to be governed by the same rule respecting damages. In that case, the appeal not ■appearing to have been taken for delay, we affirmed the judgment without damages, and that will be the judgment of the ■court in this case.