Clayton v. Clayton

• Decision Date: 10 December 1957
• Docket Number: No. 7026,7026
• Parties: Marshall CLAYTON et al., Relators, v. Frank CLAYTON et al., Respondents.
• Court: Texas Court of Appeals

Page 557

308 S.W.2d 557

Marshall CLAYTON et al., Relators, v. Frank CLAYTON et al., Respondents.

No. 7026.

Court of Civil Appeals of Texas, Texarkana.

Dec. 10, 1957.

Rehearing Denied Dec. 31, 1957.

L. F. Burke, W. C. Holcombe, Longview, for appellant.

Fred Erisman, Wm. Hurwitz, Longview, Richard F. Loomis, Jr., Rosenfield, Berwald & Mittenthal, Dallas, for appellee.

CHADICK, Chief Justice.

This is an application for a writ of prohibition filed as an original proceeding in this Court. The writ prayed for is denied.

The application arises out of certain probate proceedings originating in the County Court of Gregg County, Texas, which are here described to the extent necessary for an understanding of the disposition made of the application by this Court.

After the death of Matilda C. Clayton in Gregg County, on December 26, 1955, Rufus Williams filed for probate on January 4, 1956, an instrument dated July 22, 1952, purporting to be Matilda C. Clayton's will. The instrument tendered, besides making a testamentary disposition of Matilda C. Clayton's estate, appointed Williams independent executor of the will without bond. The proceeding in County Court was numbered and styled, 'No. 4973, In Re: Estate of Matilda C. Clayton, Deceased.' Certain heirs at law of the deceased, for themselves and other heirs, filed a contest to the application for probate of the will, and after hearing, the County Judge on February 28, 1956, denied the probate application, discharged Williams as temporary administrator and appointed another in his place. Three of the beneficiaries under the terms of the proffered will filed an appeal bond, duly approved, on March 8, 1956, in the County Court. This appeal bond, the original papers and a certified judgment of the County Court were thereafter filed in a District Court of Gregg County on April 19, 1956, and this action was numbered and styled, 'No. 28,497-B, In re: Estate of Matilda C. Clayton, Deceased.' Thereafter, Marshall Clayton and others interested in the estate, moved to dismiss the appeal, which motion was granted and the appeal dismissed. Frank Clayton appealed the District Court judgment of dismissal to this Court of Civil Appeals, and this Court in an opinion reported as Clayton v. Clayton, 297 S.W.2d 255, affirmed the District Court's judgment of dismissal. The relevant portion of the affirmed judgment of the District Court of Gregg County read:

'It is, therefore ordered, adjudged and decreed that the Motion to Dismiss the appeal from County Court in regard to the Estate of Matilda C. Clayton, Deceased, No. 4973, County Court of Gregg County, Texas, and appearing on the docket of this Court under the above styled and numbered cause (No. 28,497-B) should be and is hereby dismissed at the cost of the appellants, and the District Clerk of this Court is hereby directed to certify this Judgment to the County Probate Court of Gregg County, Texas, * * *'

The Supreme Court refused application for writ of error, and the District Court's dismissal quoted above became final.

Frank Clayton and other prospective beneficiaries under the purported will being interested in securing the probate of that instrument filed an application for certiorari in a District Court of Gregg County, on May 10, 1957, and amended the same June 11, 1957. May 17, 1957, the Judge of the District Court granted the application and set a bond. The required bond was filed, the writ issued and the transcript and original papers were duly filed in the District Court as an action numbered and styled, 'No. 39,395-B, Corene Clayton, et al. v. Marshall Clayton, et al.' The grounds of error specified in the motion for certiorari to revise and correct the County Court Probate judgment briefly stated, are: The Court erred in (1) finding Matilda C. Clayton of unsound mind on or about July 22, 1952; (2) denying the purported will to probate; (3) finding Rufus C. Williams was incompetent to serve as temporary administrator; (4) overruling exceptions urged to the petition of the contestants; and (5) overruling the motion of Richard F. Loomis, Jr., to be dismissed as a party to the contest and assessing court costs against him.

On September 5, 1957, Marshall Clayton and some 28 other parties aligning themselves him with him filed this petition for writ of prohibition complaining of Frank Clayton and 10 others, including the Judge of the District Court granting the writ of certiorari and in brief alleged that the parties respondent were attempting to relitigate issues in the pending cause No. 29,395-B, Corene Clayton, et al. v. Marshall Clayton et al., that had been litigated and adjudicated in No. 28,497-B In Re Estate of Matilda C. Clayton (this last being on appeal styled and numbered 6934, Frank Clayton, Appellant v. Marshall Clayton, Appellee, in this Court of Civil Appeals and reported as aforesaid). The prayer is for a writ to prohibit Frank Clayton and those aligned with him from prosecuting any cause of action involving issues pertaining to the probating of the purported will of Matilda C. Clayton, and to cease and desist from prosecuting cause of action No. 29,395-B, Corene Clayton, et al. v. Marshall Clayton, et al., and to make the writ applicable likewise to the Judge of the District Court of Gregg County, wherein the cause is pending by requiring him to cease and desist from entertaining any action involving such issues and the suit last mentioned.

A fair appraisal of the specific grounds of error set out in the respondents' application for certiorari leaves no doubt but that some of the issues raised by such grounds could be determined only by finding facts, while others could be determined solely by refernece to the law applicable. Stated otherwise, some are fact questions, some law questions, and others are mixed questions of law and fact. As an illustration, it would require proof of facts to determine whether the Judge of the County Court erred in finding that Matilda C. Clayton was insane on or about July 22, 1952. A law question would arise in determining the validity of special exceptions to the relators' contest of the probate application. A mixed question of law and fact is presented in testing whether the instrument offered as a will was valid as such and had been made and witnessed in conformity with law and should be admitted to probate.

As will be seen by views later expressed and authorities cited, it is though that the respondents are entitled to proceed in the District Court of Gregg County with their appeal by certiorari, regardless of whether the grounds that are specified in the application for the writ be those of fact or of law. The relators' contention that the District Court may only revise and correct errors of law in the judgments of the County Court in probate cases appealed by certiorari is next discussed.

The relators rely principally upon three cases to sustain them in their contention. Theses cases ae State v. De Silva, 105 Tex. 95, 145 S.W. 330; Schwind v. Goodman, Tex.Com.App., 221 S.W. 579; and Richardson v. Lingo, Tex.Civ.App., 273 S.W.2d 119, wr. ref., n. r. e. Out of deference to the high standing at the Bar of counsel for the relators, and the respect this Court has for any legal proposition advanced by them, it is felt that a discussion of the cases should be made to show why they are not applicable to the situation presented by this record.

State v. De Silva, supra, is not concerned with a probate case, but on the other hand, is a case arising as a consequence of the County Judge of Jefferson County forfeiting the liquor license of Ben De Silva. Thereafter De Silva applied to a District Court of that county for a writ of certiorari which was granted and the judgment forfeiting the liquor license suspended. It is not necessary to an understanding of the case to describe the various other proceedings and legal maneuvers preceding a presentation to the Supreme Court of certified questions, among which was this: 'Did * * * the District Court have the right under the provisions of Sec. 8, Art. 5 of the Constitution [Vernon's Ann.St.] to issue the writ of certiorari and thereby remove the proceedings into that court for review or to interfere, in any way, by means of the writ of certiorari with the due execution of the order of the County Judge?' In answering the question, the Court held that forfeiting the license was not a judicial act but was a ministerial enforcement of the law and that certiorari was not available to review the County Judge's action. Thus decision in that case was not upon any ground involved here, and could have no application, but because of its language this further reference is made. The opinion does not emphasize the common law character of the writ, yet it makes it abundantly clear that such is the character of writ that is under consideration. In the body of the opinion it quotes from 4 Encyc. of Pleading & Practice, pp. 8-11: 'For it is not the office of a common-law writ of certiorari to review ministerial acts, but only to correct errors of law apparent on admitted or established facts--never to settle disputed points.' [105 Tex. 95, 145 S.W. 333.] The distinction between the writ discussed and that made available by statute in probate proceedings lies in the nature of the writ. The court had under consideration constitutional power of the District Court to issue the common law writ of certiorari which is a discretionary writ and may be issued only upon special grounds, whereas the issuance of the writ of certiorari in probate case is governed by statute and is not made to depend upon the considerations governing the common law writ.

Schwind v. Goodman, supra, arose out of the efforts of children of a deceased by certiorari from the District Court to review certain orders of sale of real estate entered by the County Court of Orange County in a guardianship proceeding. As the opinion of the Commission of Appeals is understood,...