Hohenthal v. Turnure

Gould, Associate Justice. The death of plaintiff in error, after filing petition for writ of error and the approval of his supersedeas bond, but before service of citation in error and before making an assignment of errors, did not, under the statutes of this State, abate the writ of error. The evident spirit and design of the various statutes on the subject of the death of parties to a suit is that the suit or proceeding shall not abate. (Paschal’s Dig., arts. 6, 7, 13, 1573, 6463.) Although the jurisdiction of this court does not attach for the purpose of adjudicating the case until service of citation in error, (Holloman v. Middleton, 23 Tex., 537; Crunk v. Crunk, 23 Tex., 605; Beavers v. Butler, 30 Tex., 24; Mills v. Bagby, 4 Tex., 320; Davenport v. Field, 12 Tex., 94,) yet the suit is “pending” in this court, within the meaning of the statute, so that proper process may issue to enable this [4] court to proceed to a final judgment in. the name of the representative of the deceased. (Paschal’s Dig., art. 1573.) In this case the defendant in error has not proceeded under the act of November 29, 1871, authorizing this court, in any cause pending therein when any party to the récord shall die “ after the appeal bond has been filed and approved and after the writ of error has been served,” to proceed to adjudicate the case as if the parties thereto were still living. .(Paschal’s Dig., art. 6463.) No question under that statute need be considered. Proceeding without regard to it, defendant in error has caused the administratrix of the estate of the deceased plaintiff in error to be notified to prosecute the writ of error; and having acknowledged service after the administratrix had qualified, and in time for the Galveston Term, 1878, he filed the record at the proper return term, and the administratrix failing to appear, he asks for an affirmance as on certificate. Our opinion is, that it sufficiently appears by affidavits that Charlotte D. Hohenthal is administratrix of the estate of deceased, and that she has been notified to prosecute the writ of error, and that the case being now in a condition to enable this court to proceed to final judgment in the name of Charlotte D. Hohenthal, administratrix of the estate of S. L. Hohenthal, deceased, the defendant in error is entitled to the affirmance which he asks. The delay of defendant in error in acknowledging service, on account of which the affirmance was at first refused, has, on very full reconsideration of the subject, been held no sufficient ground for such refusal. (See opinion this day delivered in case of Overton v. Terry.& Huffman.) ■■ The judgment is affirmed. Aeeirmed. [Opinion, June 28, 1878. This, and the case following should have appeared in 49 Texas, in connection with the last case in that volume.]