Peveler v. Peveler

Citations

• 54 Tex. 53
• 1880 Tex. LEXIS 124

Syllabus

<p>1. Practice—Abatement.—A defendant whose place of residence was described in the petition as being in a different county from that in which the suit was brought, filed his plea to the jurisdiction, and afterwards, at the same term, procured a continuance of the cause without asking the judgment of the court on Ms plea. . At a subsequent term of the court the cause was tried without regard to the plea to the jurisdiction. Held—</p> <p>1. That there was no error.</p> <p>3. That affirming on tMs point the .decision of the court below, it is not intended to pass on the question of venue in suits on administrators’ bonds.</p> <p>3. Practice—Presumption.—Suit was brought on appellant’s bond, made by reference a part of the amended original petition, marked “ Ex. A. herewith filed.” The file mark of the amended petition was November 7, 1878. In the transcript the copy of a bond is found in all respects answering the description of the one sued on except the file mark, which was September 14, 1878, the date stated by appellant in his brief as the date when the original petition was filed, the same having been omitted from the transcript. The tenor and effect of the bond was not set forth in the petition in terms. Held —•</p> <p>1. The bond appearing in the record must be treated as the exhibit referred to in the amended petition.</p> <p>3. Though the petition was defective in failing to allege the tenor and effect of the bond, it was sufficient to allow of its admission in evidence, there being no special exception raising the question of its sufficiency relied on at the trial.</p> <p>3. Administrator's bond—Burthen of proof.—When suit is brought upon an administrator’s bond, executed on the day when the inventory and appraisement were filed, which is in the amount required by law, and which from the date of its execution remained in official custody, the burthen of proving that it has been altered as to its amount is upon the defendants.</p> <p>4. Parties.— So long as t