Newel W. Cherry et al. v. J. W. Speight, Ex'r, &c., 28 Tex. 503

Moore, C. J. —At its May term, 1855, a judgment was rendered in the vice chancery court at Fulton, in the State of Mississippi, in favor of William C. Coopwood, as administrator of the estate of John C. Cherry, deceased, against Mark Pruitt, appellee’s testator, on personal service, for the sum of $4,918 20, with interest thereon from the 27th day of March, 1855.

On the application of said Pruitt, the judgment of the vice chancery court was taken by appeal to the high court of errors and appeals for the State of Mississippi, and while the suit was pending on his appeal in said high court of errors and appeals, said Pruitt died, and, his death being suggested to the court, the appeal was revived in the name of Albert G-. Pruitt, to whom administration of his estate had been duly granted in said State of Mississippi.

On the 18th day of February, 1856, a judgment was rendered by said high court of errors and appeals against said Mark Pruitt in person, affirming said judgment of said vice chancery court, and at the same time rendering judgment, according to the conditions of his appeal bond, against said Mark Pruitt, and his surety on said bond, for the amount adjudged against him in said vice chancery court, together with damages and costs of .suit. And on the 20th day of said month, the judgment of said high court of errors and appeals was duly certified by the clerk thereof to said vice chancery court.

But afterwards, on the 4th day of February, 1858, by motion of said Coopwood in said high court of errors and appeals, of which the administrator of said Mark Pruitt was duly notified, said judgment of the 18th day of February, 1856, rendered by mistake against said Mark Pruitt in person, was corrected, and entered by an order, nunc pro tunc, against his administrator in his stead.

On the 10th of March, 1858, affidavit was made by said Co'opwood, on a duly certified transcript of the proceedings in said suit from the records of said high court of errors and appeals, “ that the amount contained in the foregoing transcript from the record of the high court of errors and appeals at Jackson, in Hinds county, in said State of Mississippi, wherein deponent was defendant in error and Mark Pruitt was plaintiff in error, and revived in the name of A. G.

Pruitt, his administrator, the amount of said decree being $4,918, with interest thereon from the 27th day of March, 1855, besides the further sum of $245 70 damages, rendered by said high court of errors and appeals of said State, as by said transcript appears, and the further sum of —, the costs recovered by this affiant as administrator, &c., are just and due, after allowing all legal offsets, payments, and credits known to affiant, and that said judgment and decree have not been paid off, satisfied, and discharged, in whole or in part.” The transcript of the proceedings had in this suit, thus authenticated, was, on the 16th of September, 1858, presented to the appellee, as the executor of said Mark Pruitt, for allowance as a valid claim against his estate, whereupon he made on said transcript the following indorsement: “ ‘ The undersigned, the executor of the estate of Mark Pruitt, deceased, rejects the whole of the within claim. “ September 16,1858.

J. W. Speight, Executor.” Subsequent to which the present suit was brought by appellants, claiming that they are entitled, as the sole heirs of said John C. Cherry, deceased, to a judgment against said appellee, as executor of said Mark Pruitt, deceased, for .the amount due on said judgment set out in said transcript, which by 'amendment is appended to and made a part of their petition.

It is quite apparent, from the facts which we have thus briefly presented, that the proper determination of this case depends upon the question whether appellants’ cause of action is founded upon the judgment of the vice chancery court or upon the judgment pronounced on the appeal by the high court of errors and appeals of the State of Mississippi.

If it be upon the former, as the judgment was rendered in the lifetime of Pruitt on personal service-, it is evidently not only sufficient to support an action against Ms personal representative in the courts of this State, but must, not having been reversed or annulled, be held conclusive on all matters therein adjudicated, unless void for fraud; while, if it be simply the judgment of the high court of errors and appeals to which we are to look to find appellants’ cause of action, beyond dispute it is nob sufficient to enable them to maintain their suit.

This judgment was given after Pruitt’s death, is against his administrator in the State of Mississippi, and, as it is not alleged that any assets which were in his hands have come into appellee’s possession, it cannot be made the foundation of an action to charge appellee as the personal representative of Pruitt in this State. (Jones v. Jones, 15 Tex., 463; Stacy v. Thrasher, 6 How., 44; McFearn et al. v. Meek, 18 Id., 44; Lightfoot v.

Berkley, 2 Rawle, 431.) The copy of the record upon which the affidavit verifying appellants’ claim was made, and which was presented to appellee for allowance as their claim against the estate of appellee’s testator, contains a complete transcript of the proceedings had in the suit, both in the vice chancery court at Pulton and in the "appeal in the high court of errors and appeals.

Although there may have been a technical or formal inaccuracy in the presentation of the claim, or the description of it in the affidavit, if the record showed a claim against the estate of his testator which should have been allowed by the appellee, and the facts stated in the affidavit were sufficient to authorize its allowance, it should have been acknowledged.

This appears to have been the view which was properly taken of the question by the appellee; for, by Ms endorsement on the transcript, he says he rejects unconditionally the “whole of the within claim.” "We deem it therefore immaterial to inquire whether the language of the affidavit, if strictly construed, would not be held to apply more directly to the judgment of the high court of errors and appeals than to that of the vice chancery court, or whether, if it were the intention to present for allowance the latter judgment, it would not have been more appropriate to have had the final proceedings of the high court of errors and appeals in'the case transmitted to the vice chancery court at Fulton, and have presented a certified copy of the record from that court as evidence of the claim to be allowed.

The claim was certainly not rejected for any technical reason of this sort. The entire proceedings in the suit in Mississippi were presented to appellee. He no doubt rejected the claim upon the ground that the judgment of the vice chancery court had been vacated and annulled by the appeal, that this judgment after the appeal had no force and effect whatever, and that the judgment of the high court of errors and appeals could alone be looked to in determining the rights which appellants could claim from the adjudication of the matters in controversy in said suit.

From the instructions given the jury, this is also evidently the view taken of the case by the District Court. If the question were one which should be ruled by the laws of this State, or its construction by our own courts, it might be thought that some support at least was given to this position by the opinion of this court in the case of Edwards v. Taney, 27 Tex., 224. I avail myself, however, of the present occasion to say, that it was not intended by the court in that case to do more than to decide the question presented in the record then before the court, which was an action for malicious prosecution.

The case was decided at a time when the court was compelled to dispose of the business before it in the absence of counsel, and without the aid of their investigation of questions upon which it was forced to act. I may also say, that subsequent reflection has led me to entertain some doubt as to the correctness of the doctrine recognized in this opinion, even in the character of cases to which I regarded it as limited when it was announced, and that I shall therefore hold it open for re-examination when it shall be again presented to the court.

But the question in the case now before us is controlled neither by the statutes nor the decisions of this State. Its solution depends entirely upon the law of Mississippi. We must determine simply what force and effect these judgments have there. When this is ascertained, it is our duty to give them the same effect here. In our opinion, it is very clear, from the statutes and decisions of the courts of that State, that the appeal to the high court of errors and appeals did not vacate or annul the judgment of the vice chancery court. Pending the appeal, its execution was suspended.

Its affirmance removed the impediment to its enforcement which the appeal interposed, but it was at all times a valid and subsisting judgment. The appeal stayed its execution merely, until its regularity and validity could be inquired into by the appellate court, but neither the appeal nor the decision of the high court of errors and appeals canceled or revoked it. Nor did that court pronounce a new judgment in its place and stead. It simply affirmed the existing and valid judgment of the vice chancery court, and gave the additional judgment which the law authorized in case of a wrongful appeal.

But this additional judgment is not in lieu or substitution of the judgment of the lower court, which is adjudged to be affirmed, but is distinct from, and in one sense independent of it. By the laws of Mississippi, judgment liens are neither impaired nor taken away by an appeal, as in this case. (Planters’ Bank v. Calvert, 3 S. & M., 143; Kilpatrick v. Dye, 4 Ib., 289; Montgomery v. McGimpsey, 7 Ib., 557; see also Thompson v. Kercheval, 10 Humph., 322; Furbu v. Carter, 2 Sneed, 1.) In the case of the Planters’ Bank v. Calvert, 3 S. & M., 212, Mr.

Justice Thrasher, in delivering the final opinion of the court, says: “The constitution declares, that the high court of errors and appeals shall have no jurisdiction but such as properly belongs to a court of errors and appeals. To a general, although not to a universal, extent, it is therefore a revisionary tribunal only. Its judgment of affirmance is, then, no more than a ratification of what has already been correctly done. It is of no higher dignity than the judgment it affirms, because it is merely confirmatory of it.

And it is no satisfaction or extinguishment of it, because it is no payment, and adds to it no greater or more enlarged rights. Whatever rights, therefore, are acquired from the judgment below, are not altered by its affirmance. “The lien which by law a judgment gives is a vested right, which was perfect at the date of the judgment below. It can be lost only by the act or consent of its beneficiary. The affirmance is but a repetition of judgment, and the damages thereon constitute but a penalty for the vexation of delay.

They are incidents to the appeal, but not parts of the original' judgment.” We are therefore of opinion, that the transcript of the record presented to appellee showed a valid claim against the estate of his testator, which should have been admitted and recognized by him for the amount adjudged in favor of said Coopwood, as the administrator of said John 0.

Cherry, by the decree of the vice chancery court at Fulton, but not for the amount adjudged against the administrator of said Pruitt by the high court of errors and appeals; and consequently the first and second charges given to the jury, at the request of the appellee, must be pronounced erroneous.

By the third instruction, also given at the request of appellee, it was incorrectly ruled, that unless notice of the judgment were given to the administrator of the estate of Pruitt, in Mississippi, within the time prescribed by the statute of that State barring claims, notice of which is not given to the representative of the estate as required bylaw, the judgment would likewise be barred as against the estate of Pruitt in, this State. On the argument of the case in this court, the counsel for appellee, with much frankness, admitted that this objection to appellants’ right to a verdict was not well taken.

It is therefore unnecessary for us to discuss the question presented by this instruction. There was no error in overruling the objection that appellants’ claim had not been properly presented to appellee for allowance against the estate of his testator, because the affidavit thereto had been made by William C. Coopwood, the administrator in the State of Mississippi of the estate of John 0. Cherry, deceased.

As a foreign administrator cannot as such prosecute suits in this State, to collect dioses in action due his intestate, he cannot verify claims for the purpose of having them recognized or established against the administrator of the debtor. (Cobb v. Norwood, 11 Tex., 556.) But in the case now before us the judgment upon which the action was brought was rendered in favor of Ooopwood. The- right fixed by it is vested directly in him. He might have brought suit upon the judgment in his own name. If it were not for the equitable power of our courts, the appellants could not bring the present suit in their own names.

The judgment is reversed, and the cause Remanded.