Long v. Wortham

Texas Supreme Court

Long v. Wortham

4 Tex. 191

CourtTexas Supreme Court

DecidedDecember 15, 1849

StatusPublished

Cited by1 cases

This text of 4 Tex. 191 (Long v. Wortham) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Long v. Wortham, 4 Tex. 191 (Tex. 1849).

Pincite

Opinion

Lipscomb, J.

The only error assigned worthy of notice is that the plaintiff below does not show by his petition any right of action in himself. The facts set out in the petition are to he taken’ as proved and admitted. This is the legal consequence of a judgment by default. When taken in that aspect, there can be no doubt but a good and sufficient right to bring the suit has been slum li. The District Court, by the loth so.ction of this 4th article of the Constitution, lias original jurisdiction over executors, &e. ' That it often may become the duty of tlio court to exercise such jurisdiction over executors there can ho no doubt; and that in the exercise of that jurisdiction the appointment of a receiver and a temporary suspension of the authority of the executor in' the management and control of the business of the estate would he almost a mailer of course. The petitioner avers 1hat this has been done; and the action of tlie court in so making its decree cannot be brought in question, in this suit. It is a judgment of record on that matter, and would fully authorize the receiver to collect the money and discharge the debtors; [383] and if [192]*192they would not pay it without suit, lie had a right .to sue for and reeoyer the same in his character as receiver. There is nothing in the objection that the petition does not set forth the proceedings and the decree of the court appointing' petitioner receiver, referred to in tile petition. If the record of another court had been referred to, the objection would have been worthy of some consideration; but when the proceedings of the same court in which the suit is ponding are referred to as of record in that court, it would he a useless inemnlirahcc of the petition to have them copied and annexed to it. It is sulli-•cicnt if the record is referred to with sufficient certainty to enable it to be used, if required. This has been done in this ease.

Note 82.—Willard v. Conduit, 10 T., 213; Swift v. Faris, 11 T., 18; Guest v. Rhine, 16 T., 549; Ricks v. Puison, 21 T., 507; Niblett v. Sholton, 28 T., 548.

Judgment affirmed.

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Lipscomb, J.

The only error assigned worthy of notice is that the plaintiff below does not show by his petition any right of action in himself. The facts set out in the petition are to he taken’ as proved and admitted. This is the legal consequence of a judgment by default. When taken in that aspect, there can be no doubt but a good and sufficient right to bring the suit has been slum li. The District Court, by the loth so.ction of this 4th article of the Constitution, lias original jurisdiction over executors, &e. ' That it often may become the duty of tlio court to exercise such jurisdiction over executors there can ho no doubt; and that in the exercise of that jurisdiction the appointment of a receiver and a temporary suspension of the authority of the executor in' the management and control of the business of the estate would he almost a mailer of course. The petitioner avers 1hat this has been done; and the action of tlie court in so making its decree cannot be brought in question, in this suit. It is a judgment of record on that matter, and would fully authorize the receiver to collect the money and discharge the debtors; [383] and if [192]*192they would not pay it without suit, lie had a right .to sue for and reeoyer the same in his character as receiver. There is nothing in the objection that the petition does not set forth the proceedings and the decree of the court appointing' petitioner receiver, referred to in tile petition. If the record of another court had been referred to, the objection would have been worthy of some consideration; but when the proceedings of the same court in which the suit is ponding are referred to as of record in that court, it would he a useless inemnlirahcc of the petition to have them copied and annexed to it. It is sulli-•cicnt if the record is referred to with sufficient certainty to enable it to be used, if required. This has been done in this ease.

Note 82.—Willard v. Conduit, 10 T., 213; Swift v. Faris, 11 T., 18; Guest v. Rhine, 16 T., 549; Ricks v. Puison, 21 T., 507; Niblett v. Sholton, 28 T., 548.

Judgment affirmed.

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Bluebook (online)

4 Tex. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-wortham-tex-1849.

Opinion

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