Gibbs v. Belcher

Citations

• 30 Tex. 79

Syllabus

<p>A cause of action, arising from a personal injury to a party, at common law, dies with the party, and with it the remedy. Actio personalis moritur cum persona. (Paschal’s Dig., Art. 18, Note 229.)</p> <p>The rule in the case of Taney v. Edwards, 27 Tex., 224, was questioned in Cherry v. Speight, 28 Tex., 503, and in future it will be regarded as overruled.</p> <p>Where the judgment was against a defendant for assault and battery, and he prosecuted error, and, pending the case in the Supreme Court, the plaintiff in the judgment died, and now the defendant below, who was plaintiff in error, moved to dismiss, because the action was personal, the motion was overruled.</p> <p>The 38th and 39th sections of the act to regulate proceedings in the district court provide for making parties in the district court whenever the cause of action survives. (Paschal’s Dig., Arts. 6, 7, Notes 224, 225.) Neither of these sections embrace a tort.</p> <p>The 37th section provides, that in all suits, where either party shall die between verdict and judgment, the judgment shall be entered as if both parties were living. (Paschal’s Dig., Art. 5, Note 223.) This section is not confined, like 38 and 39, to causes of action that survive.</p> <p>The amendatory act of 5th February, 1843, is applicable alike to all cases in which one of the parties dies after judgment. It remains a valid and subsisting claim, and a mode of collection is given in the act. (Paschal’s Dig., Arts. 13, 14, Notes 227, 228.)</p> <p>The death of a party to a personal action, after judgment, did not have the effect of vacating or opening the judgment; but it survived in favor of or against the representative of the deceased.</p> <p>A writ of error removes a cause to the Supreme Court, but does not vacate or open the judgment, nor operate so as to stay an execution on the judgment, unless security is given and supersedeas sued out. (Paschal’s Dig., Art. 1495, Note 587.)</p> <p>The 15th section of the act to regulate pro