Opinion
May 14, 1913. Rehearing Denied June 11, 1913.
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.
F. H. Booth, Anderson Belden, and Selig Deutschman, all of San Antonio, for plaintiff in error. F. C. Davis and Webb Goeth, all of San Antonio, for defendant in error.
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 Bargna 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.