Nelson v. Bagby , 25 Tex. 305 ( 1860 )

Roberts, J.

—The petition of plaintiff below commences as follows: “Your petitioner, Thomas Bagby, as the administrator de bonis non of the estate of "Willis H. Hughes, deceased, a resident citizen of the State of Georgia, humbly complaining of Allison Kelson,” &c., and it proceeds to set out, as the cause of action, a judgment recovered in the State of Georgia by Bagby, in that capacity, against Kelson and another. Kelson excepted to the petition, upon the ground that Bagby had no right to bring the suit in that capacity, which exception was overruled, and that is the error complained of.

The words “as administrator,” &c., may he treated as surplusage, being an unnecessary description of the capacity in which he had recovered the judgment in Georgia. It was immaterial by what right he had recovered the judgment there; it stood in force in his name, and, although others may have an equitable interest in it as a right of action, having the legal title, he could sue in Ms own name upon it. (Gayle et al. v. Ennis et al., and authorities cited, 1 Tex., 184; Lipscomb et al. v. Ward et al., 2 Tex., 277; also, Ib., 412; Claiborne v. Yoeman, 15 Tex., 45.)

We are of opinion that the court did not err in sustaining the petition thus excepted to.

Judgment affirmed.