Booth v. Merchants Nat. Bank of Brownsville, Tex.
| Decision Date | 29 December 1938 |
| Docket Number | No. 8714.,8714. |
| Citation | 100 F.2d 478 |
| Parties | BOOTH v. MERCHANTS NAT. BANK OF BROWNSVILLE, TEX., et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
F. W. Seabury, of Brownsville, Tex., and James Q. Louthan, of San Benito, Tex., for appellant.
F. T. Graham, of Brownsville, Tex., for appellees.
Before HOLMES and McCORD, Circuit Judges, and DEAVER, District Judge.
The appellant is a devisee under the will of F. N. Booth, deceased. One of the appellees, Merchants National Bank of Brownsville, was named as executor in a codicil of said will. On April 10, 1930, the will and codicil were admitted to probate by the County Court of Cameron County, Texas, and on the same day, pursuant to an order of court, the bank duly qualified as executor, took possession of the assets which had belonged to the deceased, and continued to administer upon his estate until, by reason of the bank's insolvency, it ceased to function.
The other appellee is the duly qualified and acting receiver of said bank, appointed by the Comptroller of the Currency of the United States. As such receiver, on January 6, 1933, he filed in said court the bank's final account as executor, praying that the same be examined, together with the attached vouchers and receipts, and that he be discharged from any further responsibility. Thereupon, the court made an order approving the account of the executor, including its fees as such, and discharging it and the receiver from all further duties in connection with the estate.
Upon petition of appellant, duly filed in the District Court of Cameron County, Texas, a writ of certiorari was issued commanding the clerk of the county court to certify and transmit to said district court a copy of all proceedings in relation to the probate of said will, the administration of the estate, the final account of the executor, and the order approving the same. In his petition, the appellant prayed that the matters relating to the accounts of the executor be heard de novo; that the district court disapprove various items allowed by the county court; and that the bank be ordered to turn over to the administrator de bonis non certain property belonging to the estate, or the value thereof.
Due return was made by the clerk to the writ of certiorari; and, upon application of the receiver, the entire case was removed to the United States District Court. The ground of removal was that this is a suit of a civil nature against the receiver of an insolvent national bank, that it directly affects the winding up of the affairs of said bank, and involves assets thereof in excess of three thousand dollars. The case is here solely upon the pleadings and the petition to remove. A motion to remand was overruled. Later, the entire suit was dismissed without prejudice.
The appellant insists that the allegations in his petition which the court below held to constitute an original action against the receiver for neglect and mismanagement of the estate should be treated as surplusage, and that the entire suit should be remanded to the state court as essentially of a probate character; but an analysis of the facts alleged and the relief sought by him leads us to the conclusion that there is a misjoinder of separate and distinct causes of action, one of which is, and the other of which is not, removable to the federal court. The case dismissed was a statutory proceeding to revise and correct an order of the probate court fixing the compensation of, approving the accounts of, and discharging the executor. The petition alleged various errors in the proceedings, and prayed that a number of items in the final account be disallowed. To this extent, the proceeding was of a strictly probate character; but the appellant went further in his petition and stated a cause of action inter partes; he sought to establish rights against the bank itself for stocks withheld and converted to its own use, demanding a personal judgment against it and in favor of appellant for $68,645.50. As stated by the Supreme Court, he sought to "adjudicate questions which precede distribution."1
The appellees claim that the bank in this case was an independent executor under Article 3436 of the Revised Statutes of Texas,2 and that the county court had no jurisdiction to audit and approve its administration account or to fix its compensation. Be this as it may, the bank's receiver voluntarily filed the account and asked for its approval, together with the allowance of compensation, and requested to be relieved of further responsibility in the matter. Citing Roy v. Whitaker,3 appellant claims that there was no complete divestiture of jurisdiction, but only a suspension thereof, so long as the independent executor was faithfully engaged in the administration of the estate, and that such suspension terminated upon the resignation of the executor.
There is a dispute in the briefs (but none in the record) as to whether or not this executor resigned.4 That it did resign is alleged in the petition for certiorari and not denied by appellees. On the contrary, in their answer, the appellees indirectly admit the resignation of the executor by referring to it as such. The probate court evidently deemed what took place a resignation, because, as prayed by appellees, it discharged the bank and the receiver from "all duties in connection with the estate and the executorship." We need not decide either the fact or the effect of the alleged resignation. The probate court necessarily had jurisdiction in the first instance to determine its own jurisdiction. If it erred, the state district court, by certiorari, had appellate jurisdiction to correct the error. The federal district court, upon a writ of certiorari, has no such jurisdiction. For the federal court to dismiss the certiorari, after removal, would place the appellant at the disadvantage of having to make a collateral attack upon the judgment of the probate court, when he has proceeded in an orderly way to revise and correct it by direct attack. A nice question of probate jurisdiction is presented,5 but it refers to a purely probate matter and should be determined by the state court.
The state of Texas has a separate and complete judicial system for the probate of wills and the administration of assets of decedents, under which the county court has original and exclusive jurisdiction, with appellate jurisdiction in the district court by appeal or certiorari.6 The District Court of the United States does not possess original jurisdiction of such administration accounts, and cannot acquire it by removal. In an appeal from the Eastern District of Texas, holding that the matter was cognizable solely in the County Court of Texas, the federal Supreme Court held that matters essentially of a probate character are not within the jurisdiction of courts of the United States.7
The other relief sought by appellant involves a personal judgment against the bank. The demand was beyond the original jurisdiction of the county court (and consequently beyond the appellate jurisdiction of the district court of the state);8 nevertheless, being a suit...
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