McIntosh v. Greenwood

15 Tex. 116

• Court: Texas Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Wheeler, J.

It is not essential to the due presentation of a claim, to an administrator for allowance, under Article 1158 of the Digest, that the affidavit accompanying the claim be made by the owner. (Hansell v. Gregg, 7 Tex. R 223.)

The Court manifestly erred in rejecting the claim and giving judgment for the defendant, merely because the affidavit was not made by the party but by an attorney. The judgment must therefore be reversed ; and as a jury was waived and the case submitted to the Court, this Court will render such judgment as the Court below ought to have rendered. Had there been any plea, under which the defendant could have introduced evidence to impeach the judgment, or show any payment or other matter of defence, it would be proper to remand the case for the purpose of affording him that opportunity. But as it is manifest that no evidence could have been introduced to affect the plaintiff’s right to a recovery, it is unnecessary to remand the case.

The judgment will be reversed, and suplí judgment be here rendered as the Court below ought to have rendered.

Reversed and re-formed.