Buchanan v. Bilger

• Decision Date: 06 November 1885
• Docket Number: Case No. 1887.
• Parties: JANE BUCHANAN ET AL. v. H. H. BILGER ET AL.
• Court: Texas Supreme Court

64 Tex. 589

JANE BUCHANAN ET AL.

v.H. H. BILGER ET AL.

Case No. 1887.

Supreme Court of Texas.

Nov. 6, 1885.

APPEAL from Marion. Tried below before the Hon. W. P. McLean.

The opinion states the case.

Todd & Eldridge, for appellants, on canceling the judgment, cited: Spencer v. Kinnard, 12 Tex., 186-8;Goss v. McClaren, 17 Tex., 115-6;Roller v. Wooldridge, 46 Tex., 493.

On recovery on the bond, they cited: Evans v. Oakley, 2 Tex., 182-4;Smith v. Smith, 11 Tex., 105-7;Murphy v. Menard, Id., 673;Francis v. Northcote, 6 Tex., 185;Martel v. Martel, 17 Tex., 392.

No briefs on file for appellees.

WILLIE, CHIEF JUSTICE.

The plaintiffs below sought relief on the following grounds:

1. A judgment had been rendered in the district court of Marion county against O'Hara (whose heirs the plaintiffs claimed to be) for $927.10 in favor of H. H. Bilger, which judgment they alleged to have been obtained without service upon O'Hara, and by confession of an attorney, falsely claiming to represent him, and who had fraudulently combined with Bilger to have the judgment rendered without the knowledge of the defendant.

2. This judgment was rendered upon a fictitious cause of action, and for a pretended debt which never existed, the particulars of all which are set out in the petition.

3. Bilger's ownership of this fraudulent and void judgment was used by him as the foundation for an application, as a creditor, for letters of administration upon the estate of O Hara, who died after the entry of the judgment.

4. That having obtained these letters, and qualified and given bond, he caused the pretended judgment to be proved up and allowed as a claim against the estate; and had the property of the deceased, to the value of $4,000, sold for its payment, and that of the costs and expenses of administration.

5. That the administrator wasted the assets and converted them to his own use, and the use of the attorney under whose advice he acted; the latter to the extent of $1,000.

6. That the administrator had made application for a final settlement, but that the estate was practically closed, nothing remaining to be done, though the administrator had never been discharged.

The above are substantially the most important allegations of the petition.

The prayers for relief are in substance as follows:

1. That the judgment by confession be canceled, vacated and held for naught.

2. That the plaintiffs recover of Bilger and the sureties upon his bond the said sum of $4,000 and interest, and of his attorney the said sum of $1,000.

3. That a writ of certiorari be granted to revise the action of the county court in granting the letters of administration and allowing and approving the judgment as a claim against the estate; and that all action of the county court in said estate be set aside and annulled; and that general relief be granted the plaintiffs.

The cause having been dismissed on demurrer for want of jurisdiction, it is not necessary to set forth any of the various special demurrers and answers to the merits pleaded by the defendants below.

It is now the well-settled doctrine of this court, that the district court has no original jurisdiction to revise and correct the proceedings, orders and decrees of a county court sitting in matters of probate. Its jurisdiction in this respect is entirely appellate, and to be exercised by means of an appeal or the writ of certiorari as provided in our Revised Statutes. Franks v. Chapman, 60 Tex., 46;S. C., 61 Tex., 576.

It is therefore apparent that, in so far as the petition sought to use the original jurisdiction of the district court to revise the orders of the county court appointing Bilger administrator of the estate of O'Hara, or allowing his claim, or performing any other act in the estate, and within the line of the probate powers of that court, it was subject to a demurrer to the jurisdiction of the court.

But the petition appealed to the appellate powers of the district court by praying for a certiorari to bring up these orders and decrees for revision and reversal. The plaintiffs, however, failed to pursue the provisions of the statutes in reference to certioraris, not having given a bond either for the costs of the proceeding, or for the performance of the judgment of the district court in case it should be against them. That one or the other of these bonds shall be given is a positive requirement of our statutes, and without it the appellate jurisdiction of the district court does not attach. R. S., 290, 291, 292.

In so far as the petition sought a recovery upon the administration bond of Bilger, it was premature in the district court. During the pendency of an administration in the county court, that court has entire supervision of the estate, and is armed with full powers to protect the interests of heirs, legatees and creditors. These are authorized to come into that court and object to any irregularities or improper conduct of the administrator in the execution of his trust; to have his accounts scrutinized and revised by the judge, and the administrator himself removed if...