E. H. Patterson v. B. R. Rogers, 53 Tex. 484

Gould, Associate Justice. The writ of error in this case was sued out by Mrs. E. H. Patterson only, seeking to revise the action of the court in rendering a judgment against her in favor of B. R. Rogers, and also another judgment against her in favor of an intervener, Marlow. In the brief filed by her counsel but two questions are presented. First. It is insisted that the answer to the plea of intervention filed in her name, signed “J. R.

Jefferson, Jr., agent,” was without authority, because “he,” Jefferson, “was not a lawyer, nor did he have a power of attorney to act for her.” As the decree recites that “ the said Patterson by her answer filed in the cause admits said indebtedness, and waives all right to be served with process,” it must be presumed, in support of the action of the court, that J. R. Jefferson, Jr., had proper authority to answer in Mrs. Patterson’s name. The second point made, assumes that judgment was rendered against Mrs. Patterson on a claim not due. The record does not show this to be so.

Both the judgment in favor of Rogers and that in favor of Marlow were rendered on notes past due. There is no error complained of by Mrs. Patterson, entitling her to have the case reversed. The assignment of errors purports to be in the name of defendant Duggan as well as of Mrs. Patterson. But Duggan is not a party to the writ of error, either as plaintiff or defendant, and his assignments cannot be considered. Indeed they have not been presented by counsel.

The intervener Marlow also assigns errors, but his assignments relate solely to errors in those proceedings and that part of the decree fixing the relative rights of himself, and Rogers. As one of the defendants to the writ of error sued out by Mrs. Patterson, Marlow had the right, without suing out a separate writ, to assign errors as against her. But if he desired a revision of that part of the decree giving Rogers a preference over him, he should have himself sued out a writ of error, and given a proper bond to secure Rogers.

We know of no authority for entertaining his assignments of error as against his co-defendant in error, Rogers. Jones v. Burgett, 46 Tex., 284. The judgment is affirmed. Affirmed. [Opinion delivered June 19, 1880.]