We filed seizure (3 separate cases) totaling $35K. DEF answered thru atty and then ran into semi. Suggestion of death filed by counsel, no other action. I hear that there are two kids (not married to Momma) and his mother. I still have to find them although counsel said something about civil suit against trucking company. Is filing the scire facias enough? Should I file a mtn for SJ to get the atty moving?

[This message was edited by Michael Valdez on 06-10-08 at .]

Hopefully, the suggestion of death named the persons whom Defendant's counsel believes should be parties.

Assuming the Defendant died intestate, only his children would have to be served (unless the Defendant's mother has some independent claim to the money). I would think you issue the writ of scire facias on the mother of the children as the representative of the minor children and then proceed accordingly.

Just looking briefly, I found this case which talks about proceeding without having the proper parties served with a writ of scire facias upon the filing of a suggestion of death:


NO. 07-04-0475-CV



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL B



SEPTEMBER 29, 2006


______________________________



JAMES D. BEVERS, APPELLANT



V.



CHERISH BRODBECK, APPELLEE


The procedure on death of a party is set out in Rules of Civil Procedure 150 through 156 and differs depending on which party dies and at what point in the proceeding the death occurs. Rule 150 provides that when the cause of action survives, the suit does not abate because of the death of a party before the verdict, but "may proceed to judgment as hereinafter provided." Rule 152 governs when a defendant dies before verdict. It provides that on a suggestion of death, or on petition of the plaintiff, "the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator, or executor or heir." Tex. R. Civ. P. 152. (2) There is no contention that Rule 152 was complied with here.

Appellant's first issue challenges the validity of the judgment against the deceased James D. Bevers when no personal representative was served or participated in the trial. Appellant contends the judgment is void as a matter of law. We agree. See De La Morena v. Ingenieria E. Maquinaria de Guadalupe, S.A., 56 S.W.3d 652, 655 (Tex.App.-Waco 2001, no pet.) (citing First Nat'l Bank in Dallas v. Hawn, 392 S.W.2d 377 (Tex.Civ.App.-Dallas 1965, no writ)); (3) Northeast Texas Mun. Water Dist. v. Mims, 389 S.W.2d 347 (Tex.Civ.App.-Texarkana 1965, no writ) (judgment set aside; trial court committed "fundamental error" by forcing counsel for deceased defendant to trial in absence of compliance with Rule 152); Trahan v. Roberts, 48 S.W.2d 503, 506 (Tex.Civ.App.-Beaumont 1932, no writ) (in absence of compliance with Rule 152 within reasonable time, court could take no action other than dismissal).

Like the plaintiffs in De La Morena and Hawn, despite the filing of a suggestion of death, Brodbeck failed to comply with the scire facias procedure necessary to permit her suit to proceed against a representative of the deceased defendant's estate. Hawn, 392 S.W.2d at 379; Tex. R. Civ. P. 150, 152.

Thanks Robert, still looking for kids. DEF counsel dragging his feet.