On Motion for Rehearing.
In our original opinion we stated that the plaintiff made allegations relative to her suffering personal injuries in 1917, and the conversion by her husband of $450 belonging to her, for the first time in her second amended petition filed on the 22d day of March, 1923, upon which she went to trial. Tn appellant’s motion for rehearing our attention is called to the fact that the plaintiff made such allegations in her first amended petition, which is copied in the record. We fell into the error complained of by reason of an agreement of the parties filed with the record by which it was sought to correct an entry in the record showing that the second amended petition was filed on the 22d day of March, 1922, when in fact said petition was filed on the 22d day of March, 1923. We also reached the conclusion that we erred in holding that appellant’s claim for the $450 item hereinbefore mentioned was barred by the two-year statute of limitation.
The plaintiff alleged and proved that she was a married woman from the time of the alleged conversion by her husband, Ed. Bartholomew, of the $450 up to the time of his death, which occurred about the 1st of May, 1919. This being true, no limitation would run against her until after the death of her husband, and as there was never any administration taken out upon the estate of her husband, limitation did not begin to run against her in favor of his estate until one year after his death, or until May, 1920, and as the first amended petition in which she sought to set up her claim for the $450 item was filed within less time than two years from the time limitation began to run against appellant, appellee’s plea of limitation of two years cannot be sustained. In our opinion we also said:
“We think it proper to suggest, before closing this opinion, that since appellant has shown by her pleading that Ed. Bartholomew died intestate in May, 1919, and that at the time of his death he left debts which were still unpaid, we do not think she could, in any event, lawfully establish her claim against the estate of Ed. Bartholomew, except through an administration in the probate court.”
In her motion for rehearing, appellant insists that the suggestion made by us is unsound.
After an examination of the pleadings of the plaintiff and the authorities cited by her counsel, we agree that our suggestion is in conflict with the uniform holding of our courts. It seems to be well settled that the district court may, in cases where the claimant has some legal or equitable rights connected with his claim for the adjudication of which the powers of the probate court are inadequate, as in the present case, maintain such action against proper parties, but only in such cases can such suits be brought in the district courts. George v. Ryon, 94 Tex. 321, 60 S. W. 428; Ralston v. Stainbrook (Tex. Civ. App.) 187 S. W. 413; Cannon v. McDaniel, 46 Tex. 303.
We will here add, however, that in such suits it is necessary to have some party or parties before the court as representatives of the estate against which a judgment is sought, and in cases where no representative of the estate, neither an administrator nor heir or heirs, are before the court, as in the present ease, the suit to establish a claim against the estate and fix a lien for its payment against the properties of such estate must fail for want of proper parties.
It was alleged by the plaintiff, appellant here, that Ed. Bartholomew was indebted to her in the sum of $450, and to others, at the time of his death, and that he had had his property conveyed to his sister, C. M. Bartholomew, to defraud his creditors. It was thus shown that an administration on the estate of Ed. Bartholomew was necessary, and it was also shown that at the time the plaintiff filed her first amended petition, wherein she set up her claim for the $450 item, the time in which an administrator of said estate could be appointed had not expired. Indeed, such time had not expired at the time judgment was rendered in this cause.
We have reached the conclusion that, since no judgment could be properly rendered in favor of the plaintiff against the estate of Ed. Bartholomew without having a representative of the estate before the court, the judgment of the trial court denying the plaintiff a recovery against said estate, and denying her prayer for the establishment of a lien against the- property of the estate, should be affirmed; and it has been so ordered.
Though appellant did not in her brief set up the contention that the court erred in awarding to appellee, O. M. Bartholomew, a recovery of lots 6 and 7 in block 1, Bartholomew Place, she has in her motion for new trial, for the first time, urged such act of the court as fundamental error. We cannot agree to the contention of appellant. Appellee in her answer and cross-petition alleged that she was the owner and in possession of lots 6 and 7 in block 1 of Bartholomew Place addition, and that appellant had by force entered upon said lots and had dispossessed her and was withholding pos*725•session thereof from her. Her prayer was for title and possession of said lots and for a decree removing cloud from her title and quieting the same in her. She also pleaded in said answer the statutes of limitation in har of appellant’s claim for the $450 item, hereinbefore mentioned.
After the Sling of appellee’s answer and •cross-petition, appellant by supplemental petition replied thereto by pleading cover-ture in behalf of herself and minority in be.half of her minor son, Ed. Bartholomew, and thereafter she also filed her second amended petition, upon which she went to trial. She did not in any of her pleadings deny the allegations of appellee relative to lots 6 and 7, nor did she in any manner assert claim to said lots. The judgment awarding the title to lots 6 and 7 to appellee was therefore, under such circumstances, authorized by article 7750, Vernon’s Say les’ Civil Statutes of 1914, which provides that:
•“If the defendant, who has been personally served with citation according to law, fails to appear and answer by himself or attorney within the time prescribed by law for other actions in the district court, the proper judgment by default may be entered against him and in favor of the plaintiff for the title to the premises, or the possession thereof, or for both, according to the petition, and for all costs, without any proof of title by the plaintiff.”
While in the present case it is not shown by the record that appellant was personally served with notice of appellee’s cross-action, it is clearly apparent that she knew that appellee had filed her answer, and that she had, after such filing, made partial answer thereto. Notwithstanding such knowledge and suen answer, she appeared, announced “Ready,” and proceeded to the trial of the case without denying the allegations of appellee relative to her ownership of said lots 6 and 7. We think under these circumstances she waived personal service and that the court properly rendered judgment for appellee for lots 6 and 7.
Having made the corrections herein shown, the motion for rehearing is refused.