
    ALLEN v. FIRST GUARANTY STATE BANK OF BEASLEY et al.
    (No. 8656.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 24, 1925.)
    1. Dismissal and nonsuit <©=>81 (!) — Refusal to reinstate cause after dismissal held not erroneous.
    ' Court did not err in refusing to reinstate cause after dismissal, because party instituting suit bad died prior thereto, and neither his heirs nor representatives had been made parties, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1886, 1887, where cause of action had been transferred by decedent to his son, and some one in interest of either decedent’s heirs or his son had appeared in cause after decedent’s death.
    2. Costs <@=>93 — Estate held not liable for costs, where no representative in court when judgment rendered.
    Estate of party instituting action was not liable for costs, where party was dead at time judgment of dismissal was rendered, and no representative of his estate was then in court.
    Appeal from Fort Bend County Court; C. D. Myers, Judge.
    Action by Minnie J. Allen against the First Guaranty State Bank of Beasley and others. From order dismissing cause, and refusing to reinstate, plaintiff appeals.
    Affirmed.
    Stevens & Stevens, of Houston, for appellant.
    F. X. Joerger, of Rosenberg, and C. H. Chernosky, of Houston, for appellees.
   LANE, J.

This suit was brought by C. H. Allen in the county court of Fort Bend county, on the 5th day of August, 1915, against First Guaranty State Bank of Beasley and others, praying for judgment in the sum of $300. The cause was continued generally and by the parties from term to term until the 21st day of March, 1919, at which time, C. H. Allen, in manner and form as required by law, transferred the pending cause of action to his - son, Bates • M. Allen. Such transfer was filed with the papers in said pending cause. Thereafter the cause was continued, from term to term, first by one party and then- by the other, until the 14th day of March, 1924, on which day the court made the following order:

“On this the 14th day of March, A. D. 1924, came on for trial, in due and regular order, and at a regular term of court, the above stated and numbered cause, and the plaintiff having heretofore continued the cause from term to term for a period of nearly nine years without prosecuting the cause to final judgment, although plaintiff and his attorneys were notified to -prosecute said cause to final judgment, or that the same would be dismissed, and plaintiff having failed’ so to do, and it appearing to the court that said cause should be dismissed, and dropped from the docket for want of prosecution:
“It is therefore ordered, adjudged, and decreed by the court that this cause be and the same is hereby dropped and dismissed from the docket for want of prosecution at the cost of plaintiff for which execution will issue.”

On the 8th day of March, 1924, the following papers were filed in the county court:

“Now comes Minnie J. Allen, who having been duly sworn, deposes and says: .
“That G. H. Allen, the plaintiff in'the above styled and numbered cause, departed this life about the 31st day of July, 1923. That no administration has been taken out in the estate of said O. H. Allen, and that no necessity exists for administration, and that none will be applied for.
“That said O. H. Allen left surviving him the affiant, his wife, and one son, B. M. Allen, who are the sole surviving heirs and legal representatives.
“That it is incumbent upon the said Minnie J. Allen to prosecute said cause, she being the surítvor of the community estate of herself and the said C. H. Allen.
“Minnie J. Allen.
“Subscribed and sworn to before me this 8th day of March, A. D. 1924.
“[L. S.] L. D. Brown)
“Notary Public in and for Harris County, Texas.
“The said Minnie J. Allen prays that she be accordingly substituted as plaintiff in said cause, and that she be allowed to prosecute said cause. Stevens & Stevens,
“Attys. for Minnie J. Allen.”

The request to have Minnie J. Allen substituted as plaintiff was, by the court, refused on the 14th day of March, 1924, in the following words:

“On this 14th day of March, 1924, came on to be heard the motion of Minnie J. Allen that she be substituted as plaintiff in the place of her deceased husband, the plaintiff, C. H. Allen, as .shown by affidavit on file; and the court having heard said motion and considered said affidavit on file; and the court having heard said motion and considered said affidavit finds that the same is not well taken, for the reason that O. H. Allen, after the institution of this suit and prior to his death, by written transfer entered on the docket of this court and filed herein, assigned and transferred to B. M. Allen all rights had in said cause of action.
“It is therefore ordered, adjudged, and decreed that the said Minnie J. Allen be refused permission to be substituted as plaintiff in said cause in the place- of her deceased husband; C. H. Allen.”

Notwithstanding the refusal of the court to substitute Mrs. Allen as plaintiff, she filed a motion to reinstate the cause. The court refused - to reinstate the suit, and from the order dismissing the cause, and the refusal to reinstate,-Mrs. Minnie J. Allen has appealed.

It Is the contention of appellant that the trial judge erred^ in dismissing the suit and thereafter refusing to reinstate the same on her motion, in that it was shown that O. H. Allen, the husband of the appellant, who instituted the suit, died in July, 1923, about seven months prior to such dismissal, and at the time of such dismissal po legal representative of O. H. Allen’s estate, nor appellant, nor Bates M. Allen, the sole heirs of C. H. Allen, had been made a party or parties to the suit. It is provided by article 1886, Verhon’s Sayles’ Civil Statutes 1914, that where in any suit the plaintiff shall die before verdict, if the cause of action be one which survives, the suit shall not abate by reason of such death, but the executor or administrator may be made party plaintiff to prosecute the suit, and if there be no such legal representative, and no necessity therefor, then the heir of the deceased plaintiff may appear, and upon suggestion of such death being entered of record, in open court, may be made plaintiff in such suit, and the suit shall proceed in his name. And by article 1887 it is provided that if, upon the death mentioned in article 1886, no appearance and suggestion be made at the first term of the court thereafter, it shall be the duty of the clerk of the court, upon application of the defendant, * * * to issue a scire facias for the executor, administrator, or heir of such decedent requiring him to'appear and prosecute such suit.

It is undisputed that 0. H. Allen transferred the cause of action to his son, Bates M. Allen, in August, 1919, after it had been pending about four years; that some one in the interest of either 0. H, Allen or Bates M. Allen appeared from term to term, and applied for continuances of the cause and for the privilege of filing additional pleadings as late as June 6, 1923; that C. H. Allen died July 31, 1923; that thereafter, on the 26th day of November, 1923, the cause was set for trial on the 12th day of December, 1923; and that, on said last-named date, the cause was continued by agreement of the parties, thus showing that some one, representing either Mrs. Allen’s or Bates Allen’s interest, appeared in said cause and invoked the jurisdiction of the court. It is shown that after the death of C. H. Allen, to wit, on the 12th day of December, 1923, the case was set for trial by agreement of the parties for March, 1924, and that, because of a want of prosecution on the day so set, same was dismissed by the court.

Under the facts and circumstances shown, we do not think the court erred in dismissing the cause and in refusing to reinstate the same upon the motion of Mrs. Allen, who it was shown had no right to, or interest in, the cause of action.

There is no merit, we think, in the contention of appellant that the estate of C. H. Allen had an interest in seeing that the costs were not adjudged against him, as it is shown that C. H. Allen was dead at the time judgment was rendered .against the “plaintiff.” Allen being dead at the time of the rendition of the judgment, such judgment as to costs is void, in that there was no representative of his estate before the court at such time.

For the reasons pointed out, the judgment is affirmed.

Affirmed. 
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