Dawson v. Hardy

Citations

• 33 Tex. 198

Syllabus

<p>1. In a case brought to this court by d writ of error which was sued out jointly by administrators and others, their co-defendants below, no bond for easts was executed by any of the plaintiffs in error, and it appeared that che court below had erroneously awarded execution against the administrators as well as against their co-defendants. Held, that the writ of error will he dismissed, except as to the administrators, and that the judgment against them be reformed, so as to withhold execution and require the judgment to be certified for payment in due course of administration.</p> <p>2. (On motion for are-bearing.) It further afjpeared that the suit was originally brought by an administrator, who died before judgment in the court below, and an administrator de bonis non was made plaintiff; hut that the final judgment was erroneously rendered in favor of the deceased administrator instead of the administrator de bonis non. Though insisted in this court that 'the judgment was void, yet it is held that the judgment be reformed and rendered in favor of the administrator de bonis non, instead of the deceased administrator.</p> <p>3. Though one of several defendants, sued upon a contract, may answer that 1 he is surety for the others, and cause that fact to be tried as an issue at the trial; yet 'an answer to that effect is not to delay tho judgment in the court below, nor can it affect the reformation of the judgment by this court, nor require a reversal oí it. (Paschal’s Digest, Article 4785.)</p>