Summerhill v. McAlexander

1 White & W. 308

• Court: Court of Appeals of Texas
• Decided: November 4, 1882
• Docket: No. 1425, Op. Book No. 3, p. 466
• Status: Published

Opinion

Opinion by

Willson, J.

§ 584. Abatement; plea in, that plaintiff, as administratrix of an estate in another state, could not maintain suit in this state. This suit is brought by appellee, as administratrix of the estate of Edmond McAlexander, deceased, against appellant, as administrator of the estate of Wm. H. Summerhill, deceased, to recover the amount of a judgment rendered in the circuit court of Lauderdale county, state of Alabama, in favor of appellee’s intestate, and against appellant’s intestate, for the sum of $713.83. Appellant pleaded in abatement that the plaintiff in the suit had no legal right to maintain the suit in the capacity of administratrix; that she had not been appointed as such by any court of this state, but that she was attempting to maintain the suit under an appointment as such administratrix, made by a court in the state of Alabama. This plea was properly sworn to as required by the statute. [E. S. 1265.] Upon a hearing of the plea, the court found against it, holding that the plaintiff could maintain the suit in the capacity in which she sued, under and by virtue of her appointment as administratrix, made by a court in the state of Alabama. In thus holding the court erred. It is well settled in this state that a suit cannot be maintained in the courts of this state, by virtue of letters of administration issued from a court of a sister state, upon a debt belonging to the estate of the decedent, where the title to such debt has not been directly invested into the administrator, as where it is made payable to him, or where judgment has been previously recovered thereon in his name. [Cobb v. Norwood, 11 Tex. 556; Cheney v. Speight, 28 Tex. 503; Davis v. Phillips, 32 Tex. 564; Simpson v. Foster, 46 Tex. 618; Terrell v. Crane, 55 Tex. 81.]

November 4, 1882.

§ 585. Judgment luithout citation is void. There is another matter fatal to the plaintiff’s suit. The transcript of the proceedings and judgment in the circuit court of Lauderdale county, Alabama, and which forms the basis of this suit, discloses the fact that the judgment in that suit was rendered against Wm. H. Summerhill without legal notice or citation. A citation or summons was issued to be served upon him, but it was returned by the sheriff that he was not found. The judgment having been obtained against him without notice, is void, and cannot be made the basis of a recovery. [Witt v. Kaufman, 25 Tex. Sup. 384.]

Reversed and remanded.