Swearingen v. Glenn

Citations

• 34 Tex. 243

Syllabus

<p>1. In 1868 a county' court, exercising the civil jurisdiction accorded it by the Constitution of 1866, rendered a judgment for debt against W. as administratrix of an estate, and improvidently awarded execution 'thereof, instead of directing a certification to the probate court, etc. In November, 1870, the plaintiff entered on the motion docket of the district court of the same county a motion to correct the judgment in the respect above indicated ; at the foot of which motion was the following entry: “ J. T. Swearingen, administrator of M. A. Drake’s estate at this time,” In the transcript sent up on this appeal there is no other evidence or indication of any change of the administration of the estate ; nor does it appear that any notice of the motion was issued or served upon any one. The district court, however, by an order which recited that “ the parties came by their attorneys,” sustained the motion and corrected.the judgm°nt. Held, that the judgment of the county court might have been corrected in this proceeding, if tie proper parties had been brought before the district court; but in default of proper parties that court had. no jurisdiction to sustain the motion .(PaschaPs Digest, articles 49 and 51.)</p> <p>3. The recital in the judgment of the district .court that “ the partiescame by their attorneys,” might be deemed sufficient if this were a mere co lateral proceeding; but that judgment itself being directly before this court on appeal, the recital does not suffice. (Watson v.. Hopkins, 27 Texas, 642, cited by the court.)</p>