T. W. House & Co. v. Collins

Citations

• 42 Tex. 486

Syllabus

<p>1. Pleading. An executrix'being sued to revive a judgment by default, rendered against her testator as the indorser, and another as the maker of a promissory note, plead that the record entry in the former proceeding had been fraudulently procured, and made to show that service had been made on her testator when no such service had been made. Held, that such facts were sufficient, if established, to authorize the executrix, as between the same parties, to put in issue her testator’s liability on the alleged indorsement of the note on which the j udgment by default against him was founded.</p> <p>2. Pleading—scire facias. Nor would the affirmance of the judgment by default by the Supreme Court on appeal, preclude such equitable defense from being set up in a scire facias proceeding to revive the judgment.*</p> <p>3. Set-off. An executrix cannot set off damages for harassment and attorney’s fees paid against a claim prosecuted against the estate she represents.</p>