Moke & Brother v. Brackett

Citations

• 28 Tex. 443

Syllabus

<p>The case of Tucker v. Brackett (ante 336) referred to, and the rulings approved relative to the liability of the surviving wife for community debts, and the effect thereon of the grant of administration on the estate of her deceased husband. (Paschal’s Dig., Arts. 4646 to 4653, Notes 1053 to 1055.)</p> <p>Judgment on a community liability was recovered in the District Court against a surviving wife, who had filed in the county court an inventory of the community property, but had not obtained letters of administration on her husband’s estate; which judgment she took to the Supreme Court on writ of error. Pending the cause on error in the Supreme Court, she was appointed administratrix of her husband’s estate, but no suggestion of this change in her representative capacity was made to the Supreme Court, and the judgment was there affirmed against her and her surety on the bond in error: Held, that the judgment of affirmance, though correct, when tested by the record on which it was rendered, was erroneous in fact, by reason of the change in the representative character of the party against whom it was rendered; that though thus erroneous it was not void, but simply voidable, as in the analogous cases of judgments rendered in favor of or against a feme covert, appearing on the record as a feme sole, or in favor of or against a dead man, when the fact of marriage or death was not apparent on the record. The proper mode of correcting an error of this character is by a proceeding in the nature of a writ of error coram nobis, in the court where the error was committed. The case of Martel v. Hernsheim (9 Tex., 294) referred to as illustrative of the correct practice in such cases.</p> <p>Subsequent to the affirmance of the judgment as above indicated, the surviving wife and then administratrix, and her surety on the writ of error bond, instituted suit in the District Court to enjoin execution of said judgment and for general relief. The District Court perpetuated the in