Schmidtke v. Miller

1. Scire Facias—Venue.—Scire facias to revive a judgment is a continuation of the same suit and the jurisdiction is where the original judgment was rendered, regardless of the residence of the defendants. S. Same—Parties Defendant.—Upon a defendant dying in a proceeding to revive a money judgment the legal representatives are necessary parties, aad the heirs are only proper parties in such suit where there is shown to be no admistration nor need of one. 3. Claims Against Estates.—The statutes of the State provide that such claims should be enforced through the probate courts. 4. Heir—Assets.—Judgment upon a money claim against the ancestor should not be rendered against heirs unless they received assets from the ancestor, as in absence of assets no liability exists.

Appeal from Bexar. Tried below before the Hon. George H. Noonan. This, is an appeal from a judgment of the district court of Bexar county on scire facias reviving a judgment for seven thousand seven hundred and sixty-five dollars and seventy-four cents, which had been rendered March 1, 1877, in the same court, in favor of Miller, the appellee, and against H. Hamilton and Charles Schmidtke. The judgment had become dormant. On August 4, 1884, petition was filed to revive the judgment and both defendants were served with writs of scire facias. Both defendants answered. During the pendency of the writ of scire facias, defendant Charles Schmidtke died. On December 21, 1885, appellee, plaintiff below, filed the amended original petition upon which he went to trial. ' In this amended original petition appellee set forth the foregoing matters and that Charles Schmidtke left surviving him as his sole heirs, his widow, Amalia Schmidtke and his two minor children, Emma Schmidtke and Charles Schmidtke, Jr., who were made parties defendants. Amalia Schmidtke, the surviving wife, and the two minor children reside in Bandera county, Texas. Petition alleged that the wife and children, the appellants, inherited from their husband and father, twenty-one thousand one hundred dollars in value, and enumerates the property alleged to have been received by them; and asked judgment and execution against the surviving original defendant Hamilton as well as against the surviving wife and minor children of Charles Schmidtke, Sr., deceased. The court below appointed a guardian ad litim for the minors. On September 6, 1886, Amalia Schmidtke and the two minors by their guardian filed an amended original answer, claiming their privilege of being sued in the county of their acknowledged residence; also filed general and special demurrers, a general denial and other defense? The plea of privilege and the exceptions were overruled. Upon a trial before a jury appellee proved the recovery of the original judgment against Hamilton and Charles Schmidtke, Sr., and rested his case, offering no testimony in support of the other allegations of his pleadings. Appellants offered no testimony, but interposed a demurrer to appellee’s evidence. The case was then withdrawn from the jury, the court overruled the demurrer to appellee’s evidence and rendered judgment in favor of appellee against Hamilton for the full amount and rendered the judgment against the surviving wife and the two minors, ordering execution against appellants to the extent only for such amount as they may have received or inherited from their husband and father, Charles Schmidtke, Sr., deceased, which was subject to the payment of his debts. From this judgment Mrs. Schmidtke and her minor children appealed. The appellant assigned errors: 1. The overruling of the general and special exceptions to the petition. 2. Overruling the plea of privilege of defendants of their right of being sued in the county of their residence, 3. In failing to prove that the appellants had received any assets of the husband and father there was no action shown by the plaintiff below. 4. In demurring to the evidence should have been sustained. 5. Execution should not have been ordered, etc.