
    BARGNA v. BARGNA.
    (Court of Civil Appeals of Texas. San Antonio.
    May 14, 1913.
    Rehearing Denied June 11, 1913.)
    Appeal and Error (§ 332*) — Writ oe Error — Death oe Plaintiee in Error — Ef-eect.
    Under Rev. Civ. St. 1911, arts. 1618, 2107, declaring that the death of any party in a cause taken to the Courts of Civil Appeals by appeal or writ of error, after the service of the writ of error and before decision of the case, shall not abate the case, and that on the death of any party entitled to an appeal or demurrer the same may be taken by his executor, administrator, or heir, a writ of error in the name of the defeated party must be dismissed for want of jurisdiction, where the party was dead at the time of the service of citation in error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1842-1845; Dec. Dig. § 332.*]
    Error to District Court, Bexar County; Claude V. Birkhead, Judge.
    Action between Marco Bargna and Mary Bargna. There was a judgment for the latter, and the former brings error.
    Dismissed.
    E. H. Booth, Anderson & Belden, and Se-lig Deutschman, all of San Antonio, fór plaintiff in error. E. C. Davis and Webb & Goeth, all of San Antonio, for defendant in error.
   TALIAFERRO, J.

This case is here upon writ of error from the district court of the Seventy-Third judicial district, and this is the second time the case has been to this court. For former opinion, see 127 S. W. 1156. The record reveals that the case was tried at the October Term, 1911, and final judgment entered as of November 13, 1911. On November 11, 1912, a petition for writ of error was filed, and on November 12, 1912, citation in error was served.

By sworn motion of defendant in error filed in this cause in the lower court on November 11, 1912, it is shown that at the time the citation in error was served Marco Barg-na was dead. Articles 1618 and 2107, R. S. 1911, provide as follows:

“Art. 1618. If any party to the record in any cause hereafter taken to the Courts of Civil Appeals, by appeal or writ of error, or transferred from the Supreme Court or Courts of Appeals, shall have died heretofore, or shall hereafter die, after the appeal bond has been filed and approved, or after the writ of error has been served, and before such cause has been decided, such cause shall not abate by such death; but the court shall proceed to adjudicate such cause and render judgment therein as if all parties thereto were still living; and such judgment shall have the same force and effect as- if rendered in the lifetime of all the parties thereto.”
“Art. 2107. In case of the death of any party entitled to an appeal or writ of error, the same may be taken by his executor, administrator or heir.”

It is clear that under these statutes this court‘has no jurisdiction- to determine this cause, and any judgment upon the merits of the case would be void. Conn v. Hagan, 93 Tex. 334, 55 S. W. 323.

The writ of error is dismissed.  