Howard v. McKenzie

Citations

• 54 Tex. 171
• 1880 Tex. LEXIS 143

Syllabus

<p>1. Practice—Parties.—Where the plaintiff in an action dies, an alleged assignee cannot, over the objection of the defendant, come in and prosecute the suit, until the legal representatives or heirs of the deceased have had an opportunity to admit or contest his right. If, however, the defendant acquiesces in such a procedure, he may be precluded from subsequently objecting.</p> <p>2. Case approved.—Moore v. Rice, 51 Tex., 290, approved.</p> <p>3. Parties—Estoppel.—The fact that a defendant asked to have the administratrix of a deceased plaintiff made a party, and also that a third party claiming an interest be also made a party plaintiff, will not preclude him from objecting in time to the action of the court in permitting the cause to proceed to judgment with such third party substituted for the administratrix.</p> <p>4. Parties—Waiver.—A defendant asked that the administratrix of an estate claiming an adverse interest, and who had succeeded a former administrator who had been plaintiff, be made a plaintiff, and that scire facias issue to make a third party claiming the interest of the estate a plaintiff. The third party appeared and pleaded, claiming the interest of the estate; the administratrix did not appear. The third party procured a change of venue, and two years afterwards, for the first time, the defendant, on the eve of trial, objected to proceeding with the cause, on account of the fact that the administratrix had not been made a party. Held, that the objection came too late.</p> <p>5. Parties—Practice.—A purchaser of land after his vendor had prepared a petition in a suit to recover it, but before the' filing of the petition, is not a purchaser pendente lite; he cannot make himself a party plaintiff in the suit on the death of his vendor until the heirs or legal representatives of the original plaintiff are first made parties.</p> <p>6. Case approved.—McMullen v. Hodge, 5 Tex., 34, approved.</p> <p>7. Fact case—Vendor and vendee.—See opinion for fact