Daniel v. Hutcheson

• Decision Date: 13 April 1893
• Citation: 22 S.W. 278
• Parties: DANIEL et al. v. HUTCHESON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

22 S.W. 278

DANIEL et al. v. HUTCHESON.¹

Court of Civil Appeals of Texas.

April 13, 1893.

Appeal from district court, Harris county; James Masterson, Judge.

Action by Annie E. Daniel, Annie E. Robertson, and R. S. Dowling against J. C. Hutcheson to recover land. Defendant obtained judgment. Plaintiffs appeal. Reversed.

F. G. Morris and W. F. Robertson, for appellants. Hutcheson, Carrington & Sears, for appellee.

WILLIAMS, J.

This cause was submitted upon the following agreed case: "(1) That R. W. Dowling owned the lot No. 28, described in plaintiffs' petition, at the time of his death, which occurred on the ____ day of ____, 1867, in Houston, Harris county, Tex. (2) That the plaintiff Annie E. Daniel is the surviving wife of said R. W. Dowling, and the plaintiffs Annie E. Robertson and R. S. Dowling are the sole issue of said R. W. Dowling, and that the plaintiffs owned the property described as lot No 28 in plaintiffs' petition, unless title thereto passed by the administration sale of said property, hereinafter mentioned. (3) That Annie E. Daniel was duly appointed administratrix of the estate of R. W. Dowling by the county court of Harris county on the 1st day of October, 1867, and duly qualified as such. (4) That on an application by said Annie E. Daniel, as administratrix, in due form, an order of sale was made in the county court on the ____ day of February, 1870, ordering the sale of said lot No. 28, described in plaintiffs' petition, to pay debts; and in accordance therewith a sale was made by said administratrix on the 5th day of April, 1870. That the county judge appointed by Gen. Reynolds, of the army of the United States, in military command of the department, including Texas, continued to act as county judge; and the order of sale and confirmation herein referred to were made in the county court, as held by him, in said Harris county, at the date above stated. (5) If, at the time of said order of sale, and confirmation thereof, the said county court had jurisdiction generally of administration on estates of deceased persons, or power to make such orders, then the plaintiffs had no title, but, if said court did not then have the general jurisdiction of administration of deceased persons, then plaintiffs have title, to said lot No. 28; and we submit to the court the legal question, did the county court have jurisdiction to make orders of sale, and confirm sale, at the time said orders were made, in administration pending in said court when the constitution of 1869 took effect?"

There can be no doubt that the constitution of 1869 abolished the county court, which had existed under the constitution of 1866, and conferred all of the probate jurisdiction that previously belonged to it upon the district court. That instrument by the provision defining the judiciary department, distributed all of the judicial power of the state among the courts named therein, and left no room for the further existence of any such courts as the county court had been. It must result that no probate jurisdiction existed in any court after those provisions went into practical operation, other than that which was thereby vested in the district court, and that the act of any person assuming the functions of a county judge was not the act of a court, and can have no effect.

It is contended by appellee that those provisions which finally had the effect to abolish the county court did not so operate from the adoption of the constitution because — First, that instrument itself suspended them until legislation should be had, adopting rules and regulations for the guidance of the district court in the exercise of probate jurisdiction; and, second, under the superior authority of federal law, the state was subject to military government, exercising its own powers through its own courts and officers, including the county judges, and the courts established and officers chosen by the people could not assume their functions until such government was voluntarily withdrawn. We will consider those objections in the order in which we have stated them.

Is there in the constitution itself any evidence of an intention that, for any time after its adoption, the county court should continue to exist, and to act as a probate court? That the constitution, as the fundamental law of the state, took effect at once upon the vote of the people, has been held by our supreme court in the case of Peak v. Swindle, 68 Tex. 242, 4 S. W. Rep. 478, where it is said that it "became operative in all its parts at the time it was ratified by the people;" and again: "Subject to the constitution of the United States, laws made in pursuance thereof, and treaties made under the authority of the general government, the constitution under consideration became the supreme law of this state, regulating, so far as it assumed to do, the rights of persons and of property, from the date of its adoption by vote of the people." The question involved in that case was whether the provision contained in that constitution, suspending the statute of limitations, operated from the date of its adoption by the people, or from the time when the senators and congressmen elected under it were admitted into congress on March 30, 1870; but that question depended, and was decided, upon the more general one, as to the time at which the constitution, as a body of law, began to operate. No other time than that at which the people expressed their will by the adoption of the constitution being fixed in the instrument itself, it was held that it became the fundamental law of the state from that time. See, also, Foster v. Daniels, 39 Ga. 39; Strickland v. Griffin, 70 Ga. 546; State v. Duffel, 32 La. Ann. 653. It is unquestionably true, however, that by the provisions of the constitution itself the effective operation of particular provisions might be postponed or suspended until other things should be done, or other events should happen. The same power which declared the law could determine when it should have practical effect. And if there is anything in the constitution itself which shows an intention that the county court should continue to exist, and to exercise probate jurisdiction, until legislation should be adopted for the transfer to and assumption by the district court of such jurisdiction, respect must be given to such intent. Appellee relies on the latter part of the last clause of section 7 of article 5, which is in these words: "And the district court shall also have original and exclusive jurisdiction for the probate of wills; for the appointing of guardians; for the granting of letters testamentary and of administration; for settling the accounts of executors, administrators, and guardians; for the transaction of all business appertaining to the estates of deceased persons, minors, idiots, lunatics, and persons of unsound mind; and for the settlement, partition, and distribution of such estate, — under such rules and regulations as may be prescribed by law." Appellee's contention is that the intention is here manifested that the district court should not commence the exercise of the probate jurisdiction newly conferred upon it until laws should be passed putting it in operation, and prescribing procedure to enable it to do so, and that, as a consequence, it was necessarily contemplated that until such legislation was enacted the county courts in which such proceedings were pending when the constitution was adopted should continue in the exercise of the jurisdiction which was conferred upon them by previous laws. Whether the district court, as it existed before the adoption of this constitution, continued thereafter as the same court, with additional powers, and enabled to proceed in the exercise of such new jurisdiction, without legislative aid, by employing, and adapting to its needs, the old procedure, or whether a new court, called the "District Court," was created, which could not organize until officers were provided, and laws passed giving effect to the constitution, is one of the questions which is thus raised; for, if the district court took jurisdiction over estates as soon as the constitution was adopted, such jurisdiction was, by the terms of that instrument, made exclusive, and could not exist in any other tribunal. The state at that time was divided into judicial districts, in each of which was a district judge, and in every county of which was a district court. The constitution provided for the election of district clerks at the same election at which it was submitted to the people, who should enter upon the discharge of their duties, including those previously performed by county clerks, as soon as they were elected. Article 5, § 9, (Election Declaration;) 2 Pasch. Dig. p. 1134, § 3. The district judges and district clerks who were in office at the time were holding under the provisional government; and, the offices which they held not having been abolished, that they could continue to hold until successors were chosen, and had qualified, has been held in several cases, in which we think the conclusions reached sound, though we do not approve of much that is said in them, nor of all of the reasons upon which the conclusions are based. Grant v. Chambers, 34 Tex. 574; Griffin v. Cunningham, 20 Grat. 31; Leachman v. Musgrove, 45 Miss. 511. In the constitution under consideration, there was no provision for the further continuance of the offices of county judge and county clerk, and no election was ordered for any such officers. Since the foundation of government in Texas we have had a district court, of substantially the same nature and structure, under each of the several constitutions, with well-defined rules and methods of practice and procedure. There had also long existed a system of probate jurisprudence which furnished rules of practice and of decision in probate proceedings, and which could readily have been adapted to the use of the district court...