Cocke v. Birr, A-112.
| Decision Date | 12 April 1944 |
| Docket Number | No. A-112.,A-112. |
| Parties | COCKE v. BIRR. |
| Court | Texas Supreme Court |
Proceeding by Charles M. Cocke, as independent executor, to probate the will of Mamie A. Grubbs, deceased. Josie Birr also sought probate of the will but prayed that the estate be turned over to her without passing through the hands of the executor named in the will. The Probate Court admitted the will to probate as a muniment of title only but denied Cocke's prayer to be appointed independent executor. Cocke appealed the probate case to the district court but failed to file an appeal bond. The district court sustained a motion to dismiss and entered a final judgment to that effect. Cocke appealed to the Court of Civil Appeals but failed to present the transcript of the appeal in time and the Court of Civil Appeals certifies questions to the Supreme Court.
Questions answered.
P. O. Lopp, of Dallas, for appellant.
Claud C. Westerfeld, of Dallas, for appellee.
This cause is before the Supreme Court on certified questions from the Court of Civil Appeals for the Fifth District at Dallas, Texas. It is an aftermath of Cocke v. Smith, District Clerk, Tex.Sup., 179 S.W. 2d 954. We will later refer to the case just cited and our opinion therein. The following are the facts concerning this case:
Mamie A. Grubbs died leaving a written will. This will bequeathed all of testatrix's property to her sister, Josie Birr, and named Chas. M. Cocke as independent executor thereof. Cocke, in due time, filed this will for probate in the County Court of Dallas County, Texas. Josie Birr filed a pleading in the probate proceedings by which she, in effect, sought probate of this will, but prayed that no independent executor be appointed, and that the estate be turned over to her without passing through the hands of the executor named in the will. The relief regarding the executor was based on the fact that the estate owed no debts. The county court probated the will, but in its probate order adjudged that there was no necessity for an administration. The probate order admitted the will to probate as a muniment of title only, but denied Cocke's prayer to be appointed independent executor. Cocke appealed the probate case to the District Court of Dallas County, but failed to file an appeal bond. On July 6, 1943, Josie Birr filed in the district court a motion to dismiss the case appealed to that court. Such motion set up the contention that the district court had acquired no jurisdiction, because Cocke had failed to file an appeal bond. On July 19, 1943, the district court sustained the motion to dismiss, and entered final judgment to that effect. At the time the judgment of dismissal was entered, Cocke gave notice of appeal to the Court of Civil Appeals at Dallas. On August 3, 1943, Cocke requested Pearl Smith, District Clerk of Dallas County, to prepare and deliver to him a transcript of the proceedings in the district court. The district clerk prepared the transcript, but on August 6, 1943, refused to deliver it to Cocke, unless he filed an appeal bond. On August 9, 1943, relator filed a petition for mandamus in the Court of Civil Appeals at Dallas to compel the district clerk to deliver to him the transcript in question. On August 13, 1943, the Court of Civil Appeals entered an order denying such mandamus. On August 23, 1943, Cocke filed a motion for rehearing in the Court of Civil Appeals. On October 1, 1943, the Court of Civil Appeals overruled such motion.
On October 15, 1943, Cocke filed an original proceeding in the Supreme Court, wherein he sought a mandamus against Pearl Smith to compel her to deliver to him the same transcript involved in the mandamus proceedings in the Court of Civil Appeals. On February 2, 1944, this Court rendered a judgment granting such mandamus. Cocke v. Smith, 179 S.W.2d 954. On February 23, 1944, this Court overruled the motion for rehearing filed by Pearl Smith and Josie Birr.
As we understand, after this Court overruled the motion for rehearing in the mandamus proceeding in this Court, Pearl Smith promptly delivered to Cocke the transcript involved in such proceeding, being the same transcript involved in the mandamus proceeding in the Court of Civil Appeals.
On March 1, 1944, Cocke presented such transcript to the Court of Civil Appeals, together with an application for its filing as a record on appeal of the probate proceedings appealed from the district court by him.
With the record standing as above detailed, the Court of Civil Appeals has certified certain questions to this Court. It is stated in the certificate that the Court of Civil Appeals is withholding consideration of a motion by Cocke to file the transcript in that court pending the answers of this Court to the questions certified. Such questions are as follows:
On the 5th day of April, 1944, this Court discovered that it had no jurisdiction in the case of Cocke v. Smith, 179 S.W.2d 954, and of its own motion entered an order setting aside its former judgment and order in that case, and dismissed the same. 179 S.W.2d 958. This action was had after the filing of the above certified questions in this Court.
As already shown, the district clerk had delivered to Cocke the transcript here involved before this Court entered its judgment and order last above mentioned. In doing this, however, the clerk acted rightfully, even though this Court was without jurisdiction to mandamus her to do so. In this connection, we hold that the district clerk acted wrongfully in refusing to deliver this transcript to Cocke in the first instance, but acted rightfully in the second instance. As a part of this opinion we hold that Cocke was entitled to appeal the case represented by such transcript without filing an appeal bond. As to these matters we refer to the opinion of this Court in Cocke v. Smith, supra, and here readopt all the rulings of law contained therein, and make that opinion as regards such rulings a part of this opinion.
A correct answer to the questions presented by this certificate requires us to construe Rules 5, 386, and 437 of our Texas Rules of Civil Procedure. Such rules read as follows:
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