Collins v. Warren, Case No. 938.

• Decision Date: 16 February 1885
• Docket Number: Case No. 938.
• Court: Texas Supreme Court
• Parties: E. M. COLLINS, EX'X, v. D. O. WARREN ET AL.

63 Tex. 311

E. M. COLLINS, EX'X,

v.D. O. WARREN ET AL.

Case No. 938.

Supreme Court of Texas.

Feb. 16, 1883.

Feb. 16, 1885.

APPEAL from Leon. Tried below before the Hon. Spencer Ford.

Appellant, as one of the creditors of D. O. Warren's estate, with a claim established, filed suit in the district court of Leon county, May 29, 1874, against appellees, as the representative of W. H. Warren, the former administrator, then deceased, and his sureties on the administration bond, alleging devastavit, etc., and by amendment that the administrator de bonis non of said estate had been appointed at the instance and in the interest of the appellees, and had neglected to sue on the administrator's bond until after her suit was filed, and prayed judgment against appellees for the full amount of her debt. Appellees filed general and special exceptions to plaintiff's petition, because there was at that time an administrator de bonis non of the estate, and a suit by him pending in that court on the former administrator's bond against appellees for all the property that came into the hands of the said former administrator, and concluded with a general denial.

Upon the trial the court sustained the exceptions of defendants, to which ruling plaintiff excepted and prosecuted this appeal, resting the case upon the following assignment of error:

“The court erred in sustaining defendants' exceptions and dismissing the cause.”

Nunn, Williams & Corry, for appellant, that a pleading demurred to is not construed most strictly against the pleader, cited: Frosh v. Swett, 2 Tex., 485-490;Wells v. Fairbanks, 5 Tex., 586;Warren v. Bailey, 7 Tex., 517;Wallace v. Hunt, 22 Tex., 650;Lambeth v. Turner, 1 Tex., 367;Williams v. Warnell, 28 Tex., 610; Rule 17 for Dist. Court Practice.

That the character of the plea will be determined, not by its designation, or name, given by the pleader, but by its contents, they cited: Lambeth v. Turner, 1 Tex., 367; 1 Chitty on Pleading, side pages 663-4; Stephen on Pleading, side pages 140, 141.

There was no special demurrer filed. Such a plea must point out the special defect--citing: Boynton v. Tidwell, 19 Tex., 121;Black v. Drury, 24 Tex., 292;Zacharie v. Bryan, 2 Tex., 276;Williams v. Bradberry, 9 Tex., 489;Mayfield v. Averitt, 11 Tex., 141;Williams v. Wright, 20 Tex., 503; Rule 18 for Dist. Court Practice.

(Counsel filed an able and exhaustive argument on their motion for rehearing.)

M. Suratt and James C. Walker, for appellees, cited, on the effect of the proviso to the act of 1870: P. D., art. 5771; Roberts v. Yarboro, 41 Tex., 452;Tyson v. Britton, 6 Tex., 224;Green v. Rugely, 23 Tex., 542.

Plaintiff's petition did not state a cause of action--citing: P. D., arts. 1341-7, 1376, and arts. 1333, 1334, 1374; Lockhart v. White, 18 Tex., 102;Green v. Rugely, 23 Tex., 539;Gray v. McFarland, 29 Tex., 163;Ansley v. Baker, 14 Tex., 607;Boulware v. Hendricks, 23 Tex., 668.

WILLIE, CHIEF JUSTICE.

This suit was brought to the September term, 1874, of the district court of Leon county, by the appellant as executrix of Thos. P. Collins, deceased, upon the bond of W. H. Warren, administrator of D. O. Warren, deceased, to recover the amount of a claim held by her against said estate. The allegations of the appellant's pleadings are substantially as follows: That W. H. Warren was appointed such administrator in February, 1869, and qualified and gave bond in accordance with the statutes then in force. That he filed an inventory of the estate March 29, 1869, wherein he charged himself with property of the value of $9,251.40, but failed to report a large amount that should have been placed upon the inventory; and that he had procured patents for a large quantity of lands belonging to the estate which he had failed to report, and for which he had never accounted. That he had sold property of the estate sufficient to pay all its debts, and yet refused to pay plaintiff's claim, and had fraudulently conveyed away valuable lands of the estate. An amended petition set out the devastavit more specifically, and in addition charged the administrator with the appropriation of the estate's money to his own use, and with the failure to take notes with good security for the purchase money of property sold by him. Appellant's claim for about $5,000 was presented and allowed by the administrator, and approved by the county court in the year 1869, but no date was given to the various acts by which the administrator had wasted the estate. In 1873 she filed a motion in the county court to have her debt paid, but before this was acted upon she became informed of the breaches of the bond, and of the death of W. H. Warren, which occurred in 1873, and proceeded no further with her motion. A subsequent amended petition alleged the appointment of an administrator de bonis non and the commencement of a suit by him upon said bond, and it was charged that the appointment was in the interest of defendants. She prayed judgment against appellees for the full amount of her debt. To these pleadings a general demurrer and also special exceptions were filed by appellees, the special exceptions being to the effect that, if liable at all, defendants were liable to a suit by the administrator de bonis non, and that there was no law in force at the time this suit was brought which authorized it. The district court sustained the demurrer and exceptions and dismissed the cause, and from this judgment the executrix appealed to this court, assigning as error the ruling of the court below sustaining the demurrer and dismissing the cause.

The statute in force when the bond was executed provided that, for breaches of such obligations, suit might be brought against the administrator and his sureties by any creditor of the estate. Pas. Dig., art. 1374. This statute was repealed by the act of August, 1870 (Pas. Dig., art. 5771), but the repealing section provided that “no remedy to which a creditor is entitled under the provisions of the laws heretofore in force shall be impaired by this act.” A similar provision is contained in the act of 1873, p. 175, section 304. The dates of the several breaches of the bond are not found in the petition, but taking the allegations most strongly against the pleader, the inference is that they occurred subsequent to the passage of the act of 1870. This is to be presumed also from the fact that they were not known to the executrix till 1873. It is to be inferred also from the fact that an amendment alleging that such breaches occurred prior to August, 1870, would have destroyed the force of the demurrer, and yet no such amendment was made; and the whole argument of her counsel in this court involves an admission that they did not occur during the existence of the act of 1848. Hence the question for our determination is: Does the proviso in the act of 1870 save to a creditor the right to sue upon an administrator's bond made previous to its passage, when the cause of action thereon did not arise until after that time?

The repeal of a statute leaves unaffected all rights in the nature of contract which have vested under the original statute. Sedgw. Const. & Stat. Law, 113. As to the effect of such repeal upon remedies existing under the former law, some difference of opinion has existed, but the weight of authority seems to be that, without some saving clause contained in the repealing law, remedies existing under the former statute must give way to those provided by the new one. The new law cannot take away all remedies previously existing, but must leave a substantial one according to the course of justice. Dwarris on Statutes, 474; Cooley on Lim., 289. If this is done, although the new remedy may not be so speedy, so satisfactory or so efficacious, the repealing statute is valid. There is a greater difference of opinion as to whether or not, with the repeal of a remedy, all suits commenced under the repealed law must necessarily fall. With the law upon the subject in this unsettled condition, the effect of section 304 of the act of 1870 upon the previous remedies of creditors would have remained somewhat in doubt had no saving clause been inserted. This act provided new and ample means of enforcing debts against an estate. They were in many respects different from those known to the former law, but were in all respects efficacious and sufficient. Id., secs. 223, 224; also, Pas. Dig., art. 5738. It would follow, then, that had section 304 contained no saving clause, it would have been a matter of some doubt which remedy should be pursued by a creditor who had a cause of action on the administrator's bond arising previous to the act of 1870. This cause of action accrued the moment that the devastavit was committed, but not before. No suit could be brought until that time; the creditor was not entitled to pursue the bondsmen until the condition of the bond was broken. When that occurs the right to pursue the remedy immediately attaches. What effect does the saving clause in the three hundred and fourth section have upon their right to prosecute such a suit?

It is a proviso and subject to the rules which govern such. A leading principle is that provisos must be construed strictly, so as to allow them to take no case out of the enacting clause which does not fall within its terms. Tyson v. Britton, 6 Tex., 224; Roberts v. Yarboro, 41 Tex., 252. If we apply this rule in all its strictness, this proviso includes only such remedies as the creditors were fully entitled to at the date of its passage. It would include in its terms all cases where the breach of the bond had actually occurred, and a cause of action had thereby accrued to the creditor, whether suit had been commenced or not. These were precisely the cases which might have been left in some doubt had no such saving clause been inserted. Such doubt was set at rest by the language of the proviso. It would not embrace cases where the creditor's cause of action had...