Hanley v. Lemmon

28 Tex. 155

• Court: Texas Supreme Court
• Decided: December 15, 1866
• Status: Published

Opinion

Donley, J.

—It is assigned for error, the overruling the defendant’s motion to quash the writ and service of scire facias. By Art. 538, O. & W. Dig., it is provided that, “ In all suits where the defendant may die before verdict, if the action survive, the suit shall not abate therefor, but upon a suggestion of such death being entered upon the record in open court, or upon a petition of the plaintiff representing that fact being filed in the clerk’s office, it shall be the duty of the clerk to issue a scire facias to the legal representative of such defendant, and upon the return thereof executed such representative shall be made a party to such suit, and the same shall proceed against him.” (Paschal’s Dig., Art. 7, Note 225.)

In the case of Ledbetter et al. v. Rice et al., decided at the Austin term, 1860, it was held that “the suggestion of the death of the party, or the petition representing the fact, is necessary to authorize the issuance of the scire facias.”

The opinion in that case is thought to be conclusive of this cause. The judgment is reversed and the cause

Remanded.