Graham v. Blackburn, 10 Tex. 314

Hemphill, Cii. J. The plaintiff in error suggests the resignation of the •defendant in error as tlie administrator, with tlie will annexed, of John Blackburn, deceased, and asks tlie court for a scire facias to his representativo, when known. The defendant in error resists the application on the grounds that tlie suit was not brought or prosecuted by the plaintiff (who in this court is defendant) in his representative capacity, and that if it were so brought, yet he had resigned and was discharged before tlie suing out of the writ of error.

In response the plaintiff is unable to state whether the resignation and discharge were prior or subsequent to tlie issue of the writ. Without considering tlie first ground, viz, that the suit was brought by Blackburn in his individual right, and examining only the latter, it appears from tlio plaintiff’s own position that the defendant in error, if ho has ceased to be administrator, is no longer in law a party to the judgment.

If this be admitted, it follows as a necessary result that the cause cannot be brought into this court in tlie name •of the said defendant, provided his discharge as administrator was prior to the ■suing out of the writ. The plaintiff is unable to say whether tlie defendant was or was not at that time discharged; consequently he cannot say whether the cause is or is not properly in the court. Under this state of facts the writ must he dismissed, and it is so ordered. Writ of error dismissed.