Davenport v. Hervey
| Decision Date | 30 April 1867 |
| Citation | 30 Tex. 308 |
| Parties | WILLIAM DAVENPORT v. JAMES W. HERVEY. |
| Court | Texas Supreme Court |
The 123d section of the act to regulate proceedings in the district courts in relation to estates reads as follows: “Any person who may consider himself aggrieved by any such decision, order, decree, or judgment, shall have the right to appeal to the district court of the county: Provided, He shall, within fifteen days after such decision, order, decree, or judgment shall have been made and rendered, file with the clerk of said court a bond for costs and damages, with good and sufficient sureties, payable to the chief justice, in such sum as he shall require, and to be approved by said chief justice, conditioned that the appellant shall prosecute said appeal to effect, and perform the decision, order, decree, or judgment which the district court shall make thereon, in case the cause shall be decided against him.” Pas. Dig. art. 1384, note 523. The party appealing must have an interest in the proceedings in which the decree or order is passed, which may be injuriously affected thereby.
The practice in the ecclesiastical court, to which our proceedings in relation to estates is analogous, is for the party claiming the right to litigate to propound his interest in the matter in dispute. And it is but just that he should state his interest before the administrator is required to answer him. But if the administrator waive his right, he cannot be heard to object in this court, for the first time, that his adversary had no interest in the estate.
Where those objecting to the final account of the administrator stated that they acted for the creditors and heirs, this court cannot say that such a contestant is not an heir.
Where the objection was to the final account of the administrator, and the issue made was as to the correct balance in the hands of the administrator subject to distribution, any creditor would have had the right to appeal, for all creditors are alike interested.
And when the district court reversed the judgment of the county court and found a larger balance in the hands of the administrator, the judgment inured as well to the benefit of those who did not appeal as of those who did. 14 Tex. 569.
This court need not notice an error which is not assigned. Pas. Dig. art. 1591, note 618.
Where the transcript was filed in this court less than forty days after the judgment in the district court, the appellant has the whole forty days within which to assign errors, and he may assign them and bring up a new record, and have the record prematurely filed by the appellee dismissed at the appellee's cost, or he may have a copy of the assignment of error certified and attached to the new record already filed. Pas. Dig. art. 1494, note 586.
It is not the duty of the clerk to forward the transcript to this court, but it is his duty to deliver it to the attorney demanding it, and he should invariably indorse upon the transcript to whom he has delivered it, or, if he forward it, under whose order he does so; and if this rule be not observed in future, we shall be compelled to enforce its observance by striking from the docket all transcripts which may be filed without a strict compliance with this rule. Pas. Dig. art. 1494, note 586.
The statute in reference to assigning errors and filing transcripts is mandatory, and intended for the protection of the parties and the court, and the court is not compelled to notice matters upon a record submitted without an observance of the law.
Where the account of the administrator failed to show the amount of interest collected or paid, and the district court, on appeal, charged interest against interest, in the absence of data to state a correct account, this court refused to disturb the decree.
APPEAL from Harrison. The case was tried before ASA H. WILLIE, Esq., a special judge chosen by the parties, because Hon. CHARLES A. FRAZER had been of counsel in the matter.
The record is exceedingly voluminous, extending over two hundred and sixty-six closely written pages. But this grows out of our peculiar system. The law provides for a record of all proceedings, and that administrators render annual accounts. But these accounts are not required to be accompanied by vouchers and annual adjudications, so as to give creditors and heirs an opportunity to except. It is also the duty of the chief justices to approve claims allowed by the administrators, and these claims become quasi judgments; but they are not judgments of record with the documents, filed so as to be open to inspection. These administrators seem to have carried on the business of selling property, collecting debts, prosecuting suits, paying debts, and managing in peace, until it came to filing a rather loose final account. The following is a summary of all that is material:
In January, 1851, James McDaniel and the appellant, William Davenport, were qualified as administrators of the estate of Thomas Murphy, deceased, and have since continued to act in that capacity. At the August term, 1859, of the county court of Harrison county, they presented for final settlement their exhibit and account of the condition of said estate.
Exceptions had been filed June 27, 1859, to this exhibit and account, on behalf of McFall & Co., Fearn, Donegan & Co., and J. W. Hervey and J. A. Heard, purporting to act for the heirs and creditors of said estate. The exceptions to the account were as follows:
1. The account of said Davenport against said estate for $21,999.20 is incorrect in this, that interest is calculated and claimed on the same for more than five years, when no interest is calculated or accounted for on the claims for collection in his hands during the same time.
2. The said Davenport has retained in his hands ten per cent. commission on the amount due himself, which he never paid out.
3. The said Davenport has charged the estate the sum of $1,300 for interest, without showing to whom and on what claims paid.
4. The said Davenport fails to account for the interest on about $30,000 for four years, which amounts to $10,000.
5. The said Davenport has charged the said estate with the sum of $200 for administration expenses, without showing the items.
6. The said Davenport has charged the estate with his traveling expenses.
7. He has paid various claims to individuals, as privileged claims, which have no privilege according to law.
8. There are many improper and illegal charges against said estate for which there are no vouchers.
9. Interest and damages rendered in the supreme court have not been accounted for.
10. He has failed to account to the estate for the same amount of interest that he collected from the debtors of the same, in this: In taking notes from the purchasers of the property sold to pay the debts of the estate, the first year's interest was added to the principal and the interest thus compounded, and for the compound interest thus used the said Davenport has not accounted.
11. The said Davenport has failed to show the amount of interest or damages collected by him for said estate, except the interest due up to the maturity of the claims.
The administrators answered the exceptions, and in part restated the former account, obviating therein some of the objections taken.
Thus presented and excepted to, the county court rendered its judgment upon the account, with the following results:
1. Exceptions to voucher No. 107 sustained, and the other exceptions overruled.
2. That the assets of the estate to be accounted for by the administrators amount to $37,169.14.
+-----------------------------------------------------------------------------+
¦3. That the mortgage and other privileged debts, costs of ¦$28,682¦
¦administration, and commissions of the administrators amount to ¦20 ¦
+---------------------------------------------------------------------+-------¦
¦Debts not privileged amount to ¦11,731 ¦
¦ ¦48 ¦
+---------------------------------------------------------------------+-------¦
¦Total indebtedness ¦$40,413¦
¦ ¦68 ¦
+---------------------------------------------------------------------+-------¦
¦4. Deduct assets from debts ¦37,169 ¦
¦ ¦14 ¦
+---------------------------------------------------------------------+-------¦
¦Excess of debts over assets ¦$3,244 ¦
¦ ¦54 ¦
+-----------------------------------------------------------------------------+
5. That the privileged debts, costs, and commissions have been paid, leaving the debts not privileged $11,731.48, to be paid pro rata out of the remaining fund, $8,486.94, or seventy-two 34-100 cents per dollar.
6. That the administrators had improvidently paid in full some of the claims not privileged, and others have not been paid their pro rata, and they are required to make up the deficit in the payments of the last-mentioned claims, file their vouchers, and make final settlement.
From this judgment James W. Hervey, one of the contestants (and he alone), gave notice of appeal.
And a supplemental exception filed as follows: “Except to voucher 84, amount paid to J. F. Williams, as attorney's fees; and to vouchers 92 and 95, for attorney's fees paid to C. M. Adams; and voucher 105, for attorney's fees paid T. A. Patilo; on the ground that the same should be paid by administrator out of his own commissions, and not out of said estate.”
In the district court the whole case, upon the law and the facts, was submitted to a special judge, and the records of the probate court and the accounts and vouchers...
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