Burnett v. Tipton

• Decision Date: 15 November 1935
• Docket Number: No. 1450.,1450.
• Citation: 89 S.W.2d 440
• Parties: BURNETT et al. v. TIPTON.
• Court: Texas Court of Appeals

89 S.W.2d 440

BURNETT et al. v. TIPTON.

No. 1450.

Court of Civil Appeals of Texas. Eastland.

November 15, 1935.

Rehearing Denied January 3, 1936.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Proceedings to adjudge Carrie E. Tipton as a person of unsound mind, wherein J. R. Burnett was appointed guardian. From a judgment of the district court reversing the judgment of county court adjudging Carrie E. Tipton to be of unsound mind, J. R. Burnett and others appeal.

Judgment of district court reversed, with direction.

Frank S. Roberts and C. J. O'Connor, both of Breckenridge, and Grady Owen, of Eastland, for appellant.

Kirby, King & Overshiner, of Abilene, for appellee.

GRISSOM, Justice.

The appellee, Carrie E. Tipton, was, by the county court of Eastland county, adjudged to be a person of unsound mind. A. P. Tipton was immediately upon such adjudication appointed temporary guardian of her person and estate, and afterwards such temporary appointment was made permanent. She gave notice of appeal to the district court from each of said orders. Upon a trial before a jury in the district court on September 24, 1934, she was found to be of sound mind, and judgment entered accordingly, and J. R. Burnett, who succeeded Tipton as guardian, and others, have appealed to this court.

It will be necessary to give in some detail the proceedings in the county court. On March 29, 1933 the following affidavit was filed in said court:

                "The State of Texas
                "County of Eastland
                "In the County Court of Eastland County
                             Texas, Lunacy
                

"Before me, the undersigned authority on this day personally appeared John I. Chesley, who, after being by me duly sworn on his oath deposes and says that Carrie E. Tipton, of Eastland County, Texas, is of unsound mind, and is without a guardian.

                                   "John I. Chesley
                

"Sworn to and subscribed before me this 29th day of March, 1933.

                            "C. L. Garrett
                            "County Judge, Eastland County
                                             Texas."
                

Immediately after the filing of this affidavit the county judge issued his warrant for the arrest of the defendant directing that the said Carrie E. Tipton be brought before him for trial on April 25, 1933. She was arrested and brought before the county judge as directed, and upon trial before a jury was found to be of unsound mind, and so adjudged. On the day she was adjudged to be of unsound mind her husband, A. P. Tipton, filed application in said court to be appointed guardian of her person and estate. This application alleged that Carrie E. Tipton had been adjudged a person of unsound mind, that the applicant was not disqualified, alleged the value of her estate, etc. Immediately, and without notice, the said A. P. Tipton was appointed temporary guardian and qualified. Thereafter notice was issued and executed by posting, requiring all persons interested in the estate of Carrie E. Tipton to appear before the next term of court and contest the appointment of A. P. Tipton as guardian if they desired to do so. At the next term on May 31st said appointment was made permanent.

On May 4, 1933, Carrie E. Tipton, through her attorney, filed her motion for a new trial in the cause wherein she had been adjudged to be of unsound mind, and A. P. Tipton appointed temporary guardian. The motion for new trial was overruled, and she, in open court, excepted and gave notice of appeal to the district court. On July 7th Carrie E. Tipton by her attorney gave notice of appeal to the district court from the order appointing A. P. Tipton permanent guardian, as well as from the prior orders of the court heretofore mentioned.

On November 16, 1933, an affidavit was filed in the county court alleging that Carrie E. Tipton had been restored to her right mind, and on the same day citation was issued to A. P. Tipton to appear before the court on November 23, 1933, and show cause why she should not be discharged from further guardianship.

On January 24, 1934, Carrie E. Tipton and Mrs. John E. Chesley, as her next friend, filed a motion in the county court to remove A. P. Tipton as guardian. The concluding portion of the prayer contained in said motion reads as follows: "And that there be appointed immediately a new guardian in this cause."

On the day the motion was filed an order was entered reciting the appearance of all parties, and removing A. P. Tipton as guardian, and appointing J. R. Burnett to such position. The judgment, among other things, contained the following recitals: "All the parties named being present in court, and represented by counsel, and the said Carrie E. Tipton in person and by next friend, Mrs. John E. Chesley, having filed a written motion to have said A. P. Tipton removed as guardian of her said estate and person, and for the court to appoint a new guardian immediately for her said estate, and the said Carrie E. Tipton in person and by attorney then and there in open court having waived a hearing and further consideration by the court of said affidavit alleging that she had been restored to her right mind, and thereupon insisting upon the court to appoint a new guardian, and the said A. P. Tipton * * * joined with his said wife for the appointment of a new guardian to be named and selected by the court without suggestion upon the part of any of the interested parties, and all interested parties agreeing to abide the judgment of the court in his selection of some competent guardian of said estate, not a relative to the said Carrie E. Tipton, the court thereupon after full consideration of the foregoing facts, acts and agreements of the parties, and the conduct of the said A. P. Tipton, and all the evidence in the case, is of the opinion that the said A. P. Tipton * * * guardian should be removed; and it further appearing to the court that the said Carrie E. Tipton was heretofore on the 25th day of April, 1933, adjudged by the County Court of Eastland County, Texas, in a jury trial had for the determination of said issue, to be of unsound mind, and it further appearing to the court that the said Carrie E. Tipton has never been restored to her right mind, but is still suffering from mental incapacity, and there is a necessity for the guardianship of her person and estate, and that J. R. Burnett, of Eastland County, Texas, is not disqualified and is entitled to be appointed guardian."

There was no appeal from this order removing Tipton and appointing Burnett guardian of the person and estate of said Carrie E. Tipton.

Prior to the trial of the cause on its merits in the district court, the appellant Burnett, guardian, presented to the court his plea to the jurisdiction and motion to dismiss the appeal. The appellee, Carrie E. Tipton, excepted to the affidavit of lunacy and the application for guardianship as insufficient in law. All of said pleas, motions, and exceptions were overruled by the court, to all of which the respective parties duly excepted.

The affidavit, warrant, and jury trial in the county court, prior to the appointment of a guardian, constituted, we think, a substantial compliance with the provisions of chapter 12, title 69, art. 4267 et seq., R.S.1925. This court has heretofore held that the appointment of a temporary guardian for a person of unsound mind is not authorized by article 4134, R. S.1925, which article does authorize the appointment of a temporary guardian for a minor. Damron v. Rankin et al. (Tex.Civ. App.) 34 S.W.(2d) 360; Goodwin v. Boggus (Tex.Civ.App.) 53 S.W.(2d) 646. The order making the appointment of said temporary guardian permanent was likewise unauthorized. Pure Oil Co. v. Clark et al. (Tex.Civ.App.) 35 S.W.(2d) 838; Withers v. Patterson, 27 Tex. 491, 86 Am.Dec. 643. However, the court having jurisdiction of the person of the defendant and the subject-matter, its said orders, if erroneous were not void. Bearden et al. v. Texas Co. et al. (Tex.Civ.App.) 41 S.W.(2d) 447; Id. (Tex.Com.App.) 60 S.W.(2d) 1031. We do not believe the court erred in overruling the exception to the affidavit of lunacy and the application for guardianship as insufficient in law.

Mrs. Tipton having seasonably given notice of appeal, the duty of preparing a transcript rested upon the clerk of the county court, and delay by him did not prevent the perfection of appeal to the district court. Stewart et al. v. Moore et al. (Tex. Com.App.) 291 S.W. 886.

The guardian's plea to the jurisdiction and motion to dismiss the appeal to the district court present a more serious question. Article 4323 provides that such "appeal shall not suspend the decision, order or judgment." Hence, after notice of appeal, and until removed, A. P. Tipton, as guardian, was authorized to continue to act as guardian of the person and estate of said ward until a decision of the district court was had.

At the time of the trial in the district court, there was nothing to be decided by that court relative to the appointment of A. P. Tipton either as temporary or permanent guardian, and that question had become moot for the reason that prior to the trial in the district court the said A. P. Tipton had been removed as guardian and the appointment of a successor at her instance had not been appealed therefrom. Therefore, if there was any controversy then determinable by the district court, it was as to whether or not Carrie E. Tipton was of unsound mind, because all other questions incident to the appeal had been disposed of by the action of Carrie E. Tipton pending the appeal.

In the case of Leonard v. Dallas County (Tex.Civ.App.) 292 S.W. 249, it was held that the judgment of the county court decreeing a person to be of unsound mind and appointing a guardian pursuant to article 4272 where the manner of the appointment of the guardian was not complained of was not appealable. This case was followed by Clark et al. v. State et al. (Tex.Civ.App.) 35 S.W.(2d) 488. However, the latter case was reversed by the Commission...