Callahan v. Stover

• Decision Date: 03 December 1953
• Docket Number: No. 4864,4864
• Parties: CALLAHAN v. STOVER et al.
• Court: Texas Court of Appeals

Page 630

263 S.W.2d 630

CALLAHAN v. STOVER et al.

No. 4864.

Court of Civil Appeals of Texas, Beaumont.

Dec. 3, 1953.

Rehearing Denied Dec. 30, 1953.

Orgain, Bell & Tucker, Beaumont, for appellant.

Andrew Campbell, Port Arthur, Floyd McGown, Jr., San Antonio, Gordon Hollon, Boerne, for appellee.

ANDERSON, Justice.

The appeal is from a judgment of the district court of the 58th Judicial District, Jefferson County, rendered on a jury's verdict, denying probate to a will of A. H. Callahan, deceased. Appellant, Mrs. A. H. Callahan, who will be referred to as proponent, is the widow of the decedent, and is named in the will as independent executrix. Appellees, Mrs. Eloise Stover and her husband, R. J. Stover, will be referred to as contestants. Mrs. Stover is a daughter of the decedent by a marriage that preceded decedent's marriage to the proponent. The only ground on which proponent's application for probate and for letters testamentary was contested was that the tendered will had been revoked by a later written will which contestants were unable to produce in court. The issue of revocation was submitted to the jury, and was answered favorably to the contestants.

Mrs. Stover contested proponent's application in the county court, and participated in the hearing had thereon. She was not joined by her husband in any of the proceedings until after the case had been filed in the district court. By its order or decree made and entered on September 25, 1951, the county court of Jefferson County admitted the will to probate. Mrs. Stover gave notice of appeal, and on October 9, 1951, filed her appeal bond, duly approved, with the county clerk. The appeal, however, was not filed in the district court until January 12, 1952, on which date the original papers, together with the appeal bond and a certified copy of the order or judgment of the county court admitting the will to probate, were delivered to and filed with the clerk of the district court.

Proponent filed and presented in the district court a motion to dismiss the appeal, the grounds therefor being that the transcript from the county court had not been filed in the district court within the time prescribed by law, and that the district court was therefore without jurisdiction to entertain the appeal. The motion, which was neither filed nor presented in the district court until after the jury had returned its verdict, was overruled; and such ruling of the trial court is now assigned as error.

Fully realizing that our holding is at variance with the holdings of our courts before our present Rules of Civil Procedure were in effect, we have concluded that the motion should have been granted and the appeal dismissed.

The right to appeal to a district court from decisions, orders, decrees or judgments of a county court in matters of probate pertaining to the estates of decedents is conferred by article 3698, Rev.Civ.Stat., which, in pertinent part, is as follows: 'Any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court, shall have the right to appeal therefrom to the district court of the county upon complying with the provisions of this chapter; * * *.'

After Article 3698 had been enacted, the procedural statutes with which it contemplated there should be compliance in order to appeal to the district court were repealed by the legislative enactment which conferred on and relinquished to the Supreme Court full rule-making power in civil judicial proceedings, acts 1939, 46th Leg., p. 201, sec. 1, Art. 1731a, Vernon's Ann. Civ.St.; and procedural rules have been adopted and promulgated in their stead by the Supreme Court. Therefore, Article 3698 must now be construed as if it provided for appeals upon compliance with the applicable rules of civil procedure, and these rules must be looked to in order to determine whether or not an appeal to the district court has been properly taken in this kind of case.

The civil district courts of Jefferson County are now governed by the rules of practice and procedure prescribed by Rule 330, Texas Rules of Civil Procedure. This rule, in material part, is as follows:

'The following rules of practice and procedure shall govern and be followed in all civil actions in district courts (of the classification which includes those in Jefferson County).

'(a) Appealed Cases.

'In cases appealed to said district courts from inferior courts, the appeal, including transcript, shall be filed in the district court within thirty (30) days after the rendition of the judgment or order appealed from, and the appellee shall enter his appearance on the docket or answer to said appeal on or before ten o'clock a. m. of the Monday next after the expiration of twenty (20) days from the date the appeal is filed in the district court.'

Before the foregoing rule became effective on September 1, 1941, district courts of classifications comparable to those now specified in the rule were governed by the rules of practice and procedure prescribed by Art. 2092, Rev.Civ.Stat., subdivision 13 of which was identical with Rule 330(a), as above quoted. The question of a district court's jurisdiction under that statute to entertain an appeal from a probate order of a county court where the appeal was not filed in the district court within thirty days after rendition of the order appealed from was before the supreme court in the case of Stewart v. Moore, 291 S.W. 886, 891. The Commission of Appeals (Section B), in an opinion which was expressly approved by the Supreme Court, there held that the district court had erred in dismissing the appeal, as for want of jurisdiction, merely because there had been a tardy filing of the appeal in the district court. The following quotation from the opinion in that case sufficiently reflects the factual background of the appeal, and contains the essence of the court's discussion of the question that was before it:

'It is apparent from the record in this cause that the plaintiffs in error filed their appeal bond, duly approved, within the time prescribed by law. This admitted fact divested the county court of Tarrant county of all jurisdiction over the case. When the county court was thus deprived of its jurisdiction eo instanter, the district court was invested with jurisdiction over the case. Within the time prescribed by law, which is 30 days, the duty alone rested upon the clerk of the county court to transmit the original papers, together with a certified copy of the order of the county court from which the appeal was taken, to the clerk of the district court, whose duty it was to file the papers and docket the cause. The law presumes, until the contrary is shown, that every official will discharge the duties imposed upon him as such by the law. In the absence of affirmative proof that an official does not intend to perform his duty, none rested upon the parties to compel him to do so by making an application for a mandamus under proper authority. After an official has in fact failed to perform his duty, there then rested upon any one interested in the subject-matter a duty to proceed by the proper legal methods to compel the derelict official to do what the law required of him in the premises. Just when a party to a litigation thus situated has lost his right to prosecute his appeal in the appellate court is a fact which must be determined by the court having jurisdiction, which in this case we hold to be the district court, by reason of the fact that the bond provided by law was filed within the time prescribed by the statute, the legal effect of which was to give the district court jurisdiction of the case.

'The determination of this fact is not within the jurisdiction of the Supreme Court, and no issue of fact was made in the district court nor in the Court of Civil Appeals, but the issue made by the pleadings was determined purely, solely, and alone upon the proposition alleged by the defendants in error that the district court had no jurisdiction of the subject-matter by reason of the mere fact that the clerk had not filed the papers, together with certified copy of the order of the county court, within 30 days from the time the order was entered.

'The district court having reached the conclusion that it had no jurisdiction because of this particular fact, and the Court of Civil Appeals having affirmed the judgment of the district court upon that question alone, there being no issue of negligence on the part of the plaintiffs in error raised in the pleadings nor in the testimony, we are of the opinion that the Court of Civil Appeals erred in affirming the judgment of the district court, and we therefore recommend that the judgment of the Court of Civil Appeals, affirming the judgment of the district court, and that of the district court, be reversed and the cause remanded to the district court for further proceedings not inconsistent with this opinion.'

It is to be noted, however, that at the time the foregoing case was decided, there was in effect in this state neither a court rule nor a statute comparable to that portion of Rule 5, T.R.C.P., which provides that our courts 'may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing except as stated in the rules relating thereto or the period for taking an appeal or writ of error from the trial court to any higher court or the period for application for writ of error in the Supreme Court, excepts as stated in the rules relating thereto.' It is necessary, therefore, that we re-examine the question that was decided in Stewart v. Moore, supra, and that we now construe Rule 330(a) in the light of and together with this prohibitory provision of Rule 5.

While it is true, as a general proposition, that such of the rules as are but re-enactments of pre-existing statutes will be given the same construction as had been given to the statutes they re-enacted, State...