Stelle v. Shannon , 62 Tex. 198 ( 1884 )


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  • Stayton, Associate Justice.

    The question of the liability of J. T. Shannon, or of his interest in the partnership property of the firm of R. E. Shannon & Bro., comes before us under the same facts, as shown by the pleadings, as did the same question in the same case on a former appeal.

    On that appeal the cause was, by the agreement of parties, submitted to the commissioners of appeals, and in their award it was determined that the minority of J. T. Shannon, by him pleaded, was a bar to the action against him, and that neither he nor his interest in the partnership property belonging to the firm of R. E. Shannon & Bro., of which he was a member by contract made during his minority, was liable for the debt sued on.

    That award, under the law, was made the judgment of this court, and whatever might be the opinion of this court upon the question presented, could we examine it as an original question, we are of the opinion that, by that judgment, the rights of the parties upon *200the questions then adjudicated must be considered as conclusively settled.

    [Opinion delivered October 14, 1884.]

    The question is an interesting one, but we do not feel at liberty to re-examine it as the case is presented.

    The appellant suggested the death of J. T. Shannon, and asked that his representatives be made parties, and his heirs were made parties by an order of the court duly entered.

    To this action of the court no exception was taken in the court below. Nearly four years had elapsed after the death of J. T. Shannon before the judgment in this cause was rendered; no administration was taken out on his estate; the appellants were willing to prosecute, and did prosecute, their claim against his heirs, and we are of the opinion that, under such a state of facts, the appellants cannot be heard to complain in this court for the first time, and to assert that a recovery could be had against them by an administrator alone, even if it was shown that other persons held debts against the estate of J. T. Shannon.

    There is no statement of facts, nor statement of conclusions of fact and law made out by the judge who tried the cause, in accordance with article 333, Revised Statutes. If, however, the recitals in the judgment can be regarded as such a statement, or if the agreement of the parties may be regarded, as an agreement under article 1414 Revised Statutes, upon neither of which questions is it necessary for us to pass, then it is simply shown that there was a subsisting judgment against J. T. Shannon, the amount of which is not shown.

    The general rule is that the heirs of a deceased person are not the proper parties to maintain a suit fora debt due to the estate of a deceased person; but as this case is presented, the appellants cannot insist upon this rule.

    If the recitals in the judgment are to be regarded at all, then the liability of Hall as a surety on the attachment bond given by the appellants sufficiently appears. If the recitals in the judgment cannot be considered, then, in the absence of a statement of facts, it must be presumed that every material fact necessary to support the judgment, and authorized by the pleadings, was proved.

    As the case is presented the judgment must be and is affirmed.

    Affirmed.

Document Info

Docket Number: Case No. 1605

Citation Numbers: 62 Tex. 198

Judges: Stayton

Filed Date: 10/14/1884

Precedential Status: Precedential

Modified Date: 9/2/2021