Moke & Brother v. Brackett , 28 Tex. 443 ( 1866 )

Coke, J.

—After the death of O. B. Brackett and the filing of the inventory and appraisement of the community property in the county court, the appellee, E. W. Brackett, became the representative of the community, and liable as such to be sued for the community debts. (O. & W. Dig., 812, 816.)

Upon certain contingencies, named in article 814, the county court was authorized to grant administration, which authority is presumed to have been properly exercised in this case when E. W. Brackett was appointed administratrix.

On the opening of this administration, the power of control, management, and disposition, up to this time held and exercised by Mrs. Brackett as survivor, ceased to exist, and the estate passed under the jurisdiction of the county court for the purposes of administration and settlement. The judgment of 22d October, 1858, in the District Court, against Mrs. Brackett, as surviving wife, and all the proceedings thereon up to the time of her appointment as administratrix, are clearly correct. The case of Tucker, administrator v. Brackett, decided by this court at this term, (ante, 336,) is decisive of this in that respect.

After the original judgment was taken to the Supreme Court, and before its affirmance, this change in the representative character of Mrs. Brackett, from surviving partner and representative of the community, to administratrix of the estate of O. B. Brackett, deceased, occurred; and the judgment was affirmed on the record as it went up, without any suggestion, as we presume, of the change being made in that court. The judgment of affirmance, when tested hy the record on which it was rendered, is correct. But by reason of this outside fact, not shown in the record, the.change in the representative character of Mrs. Brackett, it is erroneous in fact. It is well settled by the decisions of this court, that a judgment in favor of or against a feme covert, suing as a feme sole, or in favor of or against a dead man, is manifestly erroneous as soon as the fact appears. But it is believed to be equally well settled, that such a judgment is only voidable, not void, when the fact does not appear by the record. (Grassmeyer v. Beeson, 18 Tex., 753; Mills v. Alexander, 21 Tex., 154; Thouvenin v. Rodrigues, 24 Tex., 468.)

The judgment in question stands upon precisely the same footing, and is equally embraced in the principle of these authorities. It is believed that the proper mode of correcting an error of this character in a judgment is by a proceeding in the nature of a writ of error, coram nobis, in the court in which the error was, committed. Such is the usual remedy, and would seem to be the one most consonant with correct principle. (3 Salk., 145; Chase v. Ribalin, 1 J. J. Marsh., 29; Weaver v. Shaw, 5 Tex., 289; Martel v. Hernsheim, 9 Tex., 294.)

In Martel v. Hernsheim, where this court affirmed a judgment in 1849, and in 1852 it was made to appear to the satisfaction of the court that at the time of the affirmance the appellee was dead, the court vacated and annulled the judgment of affirmance, revoked the mandate, and continued the case, as on suggestion of the death of the appellee, for want of parties. This we believe to be the correct mode of procedure in such cases. And similar steps should have been taken by the appellants to have the error in this judgment corrected.

But this proceeding was instituted in the District Court, hy the appellees invoking the interposition of the equitable powers of the court for their protection against the operation of an execution issued on this judgment, a judgment which, it may he remarked, was erroneously rendered only because of their failure to inform the court of a fact peculiarly within their knowledge, and essential to a proper adjudication of the case they had carried there.

The jurisdiction of the District Court having properly attached, for the purpose of granting the relief sought, all the parties in interest, and all the facts of the case being before it, that court had full power to consider, act upon, and dispose of the whole case, and, while relieving the appellees on one hand from the operation of an execution issued on an erroneous judgment, on the other to dispense equity to the appellants, and impose just conditions on the relief granted appellees, hy correcting the error in this judgment, so that its collection might be legally enforced.

This jurisdiction was called into play and these powers of the court invoked hy the appellees, the only parties having a right to impeach or complain of this judgment; and, as they sought equity in this tribunal, they cannot complain that they have been compelled to do equity, that they have been placed in reference to this judgment in the same position that they would have occupied had they, as they should have done, given proper information of the facts to the court before its affirmance, and no error been committed.

We are of the opinion that the judgment of the court below, so far as concerns the appellee, Emily W. Brackett, perpetuating the injunction against her as surviving wife of O. B. Brackett, deceased, and certifying the judgment to the probate court of Bexar county to he paid in due course of administration of the estate of said 0. B. Brackett, is correct. But in" so far as it perpetuates the injunction as to Samuel S. Smith, the other appellee, it is erroneous.

We can perceive nothing in the record entitling him to the discharge which this judgment gives him from his liability as surety on the appeal bond. The judgment of affirmance was entered against principal and surety, and, when corrected as to Emily W. Brackett, administratrix, the principal, reinstated the liability of Smith the surety, as well as that of the estate of Brackett.

As to Smith, the injunction should have been dissolved, and judgment rendered against Mm and the sureties on the injunction bond, and the appellants left free to enforce it by execution.

For this error the judgment is reversed and reformed here to conform to this opinion.

Reversed and reformed.