Texas Supreme Court · decided 1852-07-01
<p>where the Supreme Court affirmed a judgment in 1849, and in 1852 it was made to appear to the satisfaction of the court that at the time of the affirmance the appellee was dead, the court vacated and annulled the judgment of affirmance, revoked the mandate, and continued the ease, as on suggestion of the death of the appellee, for want of parties. (Note 49.)</p> <p>Note 4.9. — Whore the death of the plaintiff is suggested by his attorney as eauso for not proceeding to final judgment such suggestion may be contested by the defendant, and it would seem thatthe trial should bo by tho court; and if it be found in the negativo and the suit be dismissed, but it afterward appear that tho plaintiff was dead, tho causo will bo.reinstated on motion at tho next term. (Armstrong v. Nixon. 16 T., 610.) When, after suit is brought, Ihoro is a change in the representativo character of the defendant, so that tho judgment against the defendant is erroneous in fact, it is not void, but simply voidable, as in the analogous cases of judgment rendered in favor of or against a feme covert appearing on tho 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. Tho proper modo 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. (Moke and Brother t>. Brackett, 28 T.,443.) A judgment against a deceased defendant is not void, but only voidable, and on writ of error coram nobis in the court where rendered it may be set aside and correctly rendered against tho representative of the deceased defendant. (Giddings v. Steele, 28 T., 7’82; Pullen v. Baker, 41 T., 419.)</p>
Cited by 1 later decisions — most recently April 1927
1 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1852-07-01
