GALVESTON SESSION,
JANUARY, 1867.
[It will be seen that there had been no final disposition of the following cause. The same parties moved to dismiss for want of an assignment of errors, but of course there was no action upon the motion for want of parties. The opinion is given, because it establishes a rule of practice.—Reporter.]
Charles M. S. Gayle v. Daniel Hoffman.
The heirs alleged that there had been no administration, and no necessity of one, upon the facts stated. The court ordered that, upon proving these facts, the heirs might be made parties.
Appeal from Jackson. The case was tried before Hon. Fielding Jones, one of the district judges.
Stockdale & Proctor
filed the following motion: And now come Leah Moore, Amelia Coates, and Georgiana Glenn, and suggest and show to the court, that Daniel Hollinan, appellee, since the filing of this cause in the Supreme Court, has departed this fife intestate;' that there has been no administration upon his estate, and that there are no debts existing against the same; that the said Daniel Hoffman, deceased, left neither father nor mother; that Leah Moore, Amelia Coates, and Georgiana Glenn are his sisters and sole heirs; and they therefore ask, as his hems, that they may be permitted to appear and defend all the rights and interests of the said decedent involved in this cause.
*2Donley, J.
The appellee having died since the appeal
was perfected and the record filed in this court, certain persons appear in the cause and allege that the said Daniel Hoffman died intestate; that there is no administrator, and no necessity for administration; that they are the sole heirs of said decedent; and ask that they may appear as parties in the cause, &c. On making proof of the facts as alleged, the said Leah Moore, and other alleged heirs of the said Daniel Hoffman, may he made parties hereto. This proof, in the absence of controversy as to the facts, may be made by affidavit of any party legally competent to testify in the cause. Cases may arise in which the court may require other mode of proof. (Art. IV, sec. 3, Const. of Texas;) [Paschal’s Dig., p. 935; Id., Note 176.]
The record is returned, that the proof of heirship and other facts alleged may be made.
Ordered accordingly.