Clark v. Hopkins

Citations

• 34 Tex. 139

Syllabus

<p>1. Under our statute, when suit is brought in the name of one person for the use oi another, the person in whoso name the suit is brought is a mere nominal party, and the usee is the real party.</p> <p>2. On the death of the nominal party the suit will notábate, nor need it be revived in the name of his representatives, but it will proceed in the name of the usee. In the district court, however, the statute makes it necessary that the death of the nominal party be suggested on the record,</p> <p>3. A defendant, against whom judgment by default had been rendered by a justice of the peace, sued out a certiorari, showing in his petition that no case against him was made out in the justice’s court, and that he had a good defense to the action as proved against him by the plaintiff, and fortifying his petition by an affidavit of the justice of the peace that the judgment was rendered under a mistake of the facts, and was erroneous. Held, that notwithstanding no excuse for suffering the default was-alleged, the petition was sufficient, and it was error to quash the certiorari on the ground that the petition failed to show diligence. (Ward v. McRimmond, 12 Texas, 319, cited by the court.)</p>