Chisholm v. Bewley Mills, No. A-5509
| Court | Supreme Court of Texas |
| Writing for the Court | WALKER |
| Citation | 155 Tex. 400,287 S.W.2d 943 |
| Parties | Cecil J. CHISHOLM, Administrator, Petitioner, v. BEWLEY MILLS, a Corporation, Respondent. |
| Docket Number | No. A-5509 |
| Decision Date | 15 February 1956 |
Page 943
v.
BEWLEY MILLS, a Corporation, Respondent.
Rehearing Denied March 28, 1956.
[155 Tex. 401]
Page 944
W. L. Eason, Waco, for petitioner.Street & Street, Waco, for respondent.
WALKER, Justice.
Upon the application of respondent, who asserts a claim against the estate of W. J. Chisholm, deceased, the County Court entered an order directing petitioner, as administrator of the estate, to sell certain real estate to satisfy the claim. Petitioner appealed to the District Court, which also granted respondent's application, and this judgment has been affirmed by the Court of Civil Appeals. 281 S.W.2d 959. Petitioner contends that the claim is invalid because a certified copy of the judgment establishing same was not fild with the County Clerk within thirty days after its rendition as required by art. 3523, [155 Tex. 402] Tex.Rev.Civ.Stat.1925. We have concluded that the thirty-day provision of this statute is not mandatory, and that the judgment of the Court of Civil Appeals should be affirmed.
All proceedings in the courts below were completed before the effective date of the Texas Probate Code and are controlled by the statutes as they existed prior to January 1, 1956. Article 3522 authorized the owner of a rejected claim to institute suit for the establishment thereof in a court of competent jurisdiction. Article 3523 then provided that 'No execution shall be issued on a judgment obtained in such suit, but a certified copy of such judgment shall be filed with the county clerk of the county where the estate is pending within thirty days after the rendition of such judgment, and entered upon the claim docket, and shall be classified by the county judge, and have the same force and effect as if the amount thereof had been allowed by the executor or administrator, and approved by the county judge.'
Respondent's claim, which is based on an unsatisfied judgment rendered against the decedent during his lifetime, was duly presented to and rejected by the administrator. Suit on the rejected claim was instituted in district court within ninety days, and on November 19, 1951, the trial court entered judgment establishing the claim. This judgment was affirmed by the Court of Civil Appeals, and the administrator's application for writ of error was refused by this Court. Chisholm v. Mills, Tex.Civ.App., 250 S.W.2d 268. Motion for rehearing on the application for writ of error was overruled on October 29, 1952. The mandate of the Court of Civil Appeals issued on January 15, 1953, and a certified copy of the judgment was filed with the County Clerk on January 27, 1953. The claim was thereafter entered on the Claim Docket and classified by the County Judge. The Court of Civil Appeals concluded that the statutory requirement was satisfied by filing the certified copy within thirty days after the issuance of its mandate in the former action.
Petitioner argues that the thirty-day provision of art. 3523 is mandatory, and that respondent's claim is barred because a certified copy of the judgment was not filed with the County Clerk within thirty days after the judgment was rendered by the trial court, and in any event because the same was not filed within thirty days after the judgment was made final by the overruling of the motion for rehearing on the application for writ of error. No contention is made that anyone has been prejudiced or inconvenienced by the delay in filing the judgment.
[155 Tex. 403] Respondent cites Hinton v. Uvalde Paving Co., Tex.Civ.App., 118 S.W.2d 317
Page 945
(writ ref.), which is similar in many respects to the present...To continue reading
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University of Texas v. Loutzenhiser, No. 02-0894.
...984 S.W.2d 958, 961 (Tex.1999); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.1983); and Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956)); Hines v. Hash, 843 S.W.2d 464, 468 41. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam) (citing City ......
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In Re Lowery, No. 71
...[Emphasis added]. Schepps v. Presbyterian Hospital of Dallas, 652 S.W.2d 934, 936 (Tex. 1983) (quoting Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956)). Our analysis would stop here but for the fact that Rule 1(k) defines "shall" as "mandatory" and "may" as "permissi......
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...an act to be done within a certain amount of time and fails to state the consequences for noncompliance. Chisholm v. Bewley Mills , 155 Tex. 400, 287 S.W.2d 943, 945 (1956) ; see also Thomas v. Groebl , 147 Tex. 70, 212 S.W.2d 625, 630–31 (1948).Section 651.161(b) provides that the "stated ......
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San Antonio Water Sys. v. Nicholas, No. 04–12–00442–CV.
...to the entire act, its nature and objectives, and the consequences that would follow from each construction.” Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956) ; Planet Ins. Co. v. Serrano, 936 S.W.2d 35, 36–37 (Tex.App.-San Antonio 1996, no writ) (quoting Chisholm); Meier,......
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University of Texas v. Loutzenhiser, No. 02-0894.
...984 S.W.2d 958, 961 (Tex.1999); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.1983); and Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956)); Hines v. Hash, 843 S.W.2d 464, 468 41. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam) (citing City ......
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In Re Lowery, No. 71
...[Emphasis added]. Schepps v. Presbyterian Hospital of Dallas, 652 S.W.2d 934, 936 (Tex. 1983) (quoting Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956)). Our analysis would stop here but for the fact that Rule 1(k) defines "shall" as "mandatory" an......
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Bankdirect Capital Fin., LLC v. Plasma Fab, LLC, No. 15-0635
...an act to be done within a certain amount of time and fails to state the consequences for noncompliance. Chisholm v. Bewley Mills , 155 Tex. 400, 287 S.W.2d 943, 945 (1956) ; see also Thomas v. Groebl , 147 Tex. 70, 212 S.W.2d 625, 630–31 (1948).Section 651.161(b) provides that the "st......
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San Antonio Water Sys. v. Nicholas, No. 04–12–00442–CV.
...to the entire act, its nature and objectives, and the consequences that would follow from each construction.” Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956) ; Planet Ins. Co. v. Serrano, 936 S.W.2d 35, 36–37 (Tex.App.-San Antonio 1996, no writ) (quoting Chisholm); Meier,......