Swearingen v. Glenn

34 Tex. 243

• Court: Texas Supreme Court
• Decided: July 1, 1871
• Status: Published

Opinion

Walker, J.

Had the proper parties been before the district court, the judgment of the county court might have been corrected in this proceeding; but the court erred in assuming jurisdiction.of the motion without having parties properly before it.

If Martha Weems has, by death or otherwise, ceased to he the administratrix of Drake’s estate, then the suit certainly abated as to her, and no action could be taken by the court until the necessary parties were made. But there is no evidence to. show that Martha Weems, is dead, or that she has ceased, to be administratrix, nor does it appear that Swearingen has been appointed ad - ministrator of Drake’s estate.

We have in this case the-anomalous fact of a contradiction between the record and the judgment of the court.

The judgment recites that the parties appeared by their- attorneys.; the record shows, however, that there was no appearance by attorneys, nor was there any service of the motion. If this were a mere collateral proceeding, we might feel disposed to reconcile the contradiction, if possible, and hold the- recital in the judgment good. But it is. not the.- judgment that is- before the court on appeal. On the authority of Watson v. Hopkins, 27 Texas, 642, the judgment in this case must be reversed; which is accordingly done, and the cause remanded.

Reversed and remanded.