Files v. Buie

• Decision Date: 02 February 1938
• Docket Number: No. 2134-7035.,2134-7035.
• Citation: 112 S.W.2d 714
• Parties: FILES et al. v. BUIE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

112 S.W.2d 714

FILES et al. v. BUIE et al.^*

No. 2134-7035.

Commission of Appeals of Texas, Section A.

February 2, 1938.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Mrs. Dellah Buie filed her final account as the guardian of Mrs. S. V. E. Covert, a non compos mentis. Tom Files and others contested the account in the probate court, and some of the contestants appealed to the district court. The district court reduced the amount of the guardian's claim, and Tom Files and some of the contestants brought error to the Court of Civil Appeals which certified a question to the Supreme Court.

Question answered.

Marrow & Calvert and Will M. Martin, all of Hillsboro, for appellants.

John Abney and Andrew J. Bryan, Jr., both of Hillsboro, for appellees.

GERMAN, Commissioner.

The certificate of the Court of Civil Appeals is as follows:

"The above styled and numbered cause is now pending in this court on appeal. The record shows that Mrs. Dellah Buie was appointed guardian of the estate of Mrs. S. V. E. Covert, a non compos mentis, by the probate court of Hill County. Later the ward died and the guardian filed her final account in said court. Numerous parties who claimed to be interested in the estate of the deceased ward contested said account. The probate court, in approving the final account, approved claims in favor of the guardian for a total sum of $8,628.00. Upon appeal to the district court the amount of the guardian's claim was reduced to $4,610.41, and that court awarded all cost against the estate of the deceased ward. Tom Files and ten others constituting some of those who contested the guardian's claim in the district court, being dissatisfied with the judgment, undertook to remove the cause to this court by petition for writ of error. Jesse Munchus, Mrs. Dovie Scott Galbraith, J. O. Galbraith, Mrs. Susie Scott Lott, J. T. Lott, Bob Scott and Ralph Scott, who also contested the guardian's claim in the district court, were not named as either plaintiffs or defendants in the petition for writ of error. In the pleadings it is alleged that these parties are interested in the estate of the deceased, but it is not shown how they are interested. However, the statement of facts shows that Jesse Munchus is a nephew of the deceased; Mrs. Dovie Scott Galbraith, Mrs. Susie Scott Lott and Ralph Scott are grandchildren of a half sister of the deceased; J. O. Galbraith is the husband of Dovie Scott Galbraith; and J. T. Lott is the husband of Susie Scott Lott. Mrs. Buie and her husband, the only parties named as defendants in error, have filed in this court a motion to dismiss the writ of error proceedings because the said Jesse Munchus and the remainder of the contestants in the trial court were not made parties to the writ of error proceedings. At a former date we sustained the motion and dismissed the appeal. A copy of our opinion is attached. The matter is now before us on a motion for rehearing. In order to properly dispose of the suit, we deem it advisable to submit to your Honorable Court the following question:

"Were the said Jesse Munchus and others, who were not named as parties in the writ of error proceedings, necessary parties thereto in order to confer jurisdiction on this court?"

To this statement we add the following: The record discloses that after the death of the ward, and prior to the action of the probate court upon the final account, W. C. Covert, surviving husband of the ward, qualified as temporary administrator of her estate. The judgment of the probate court contains the following recital:

"It appeared from the citations and returns on file herein that notice of filing said account had been duly issued, served, published and returned in the manner and form and for the length of time required by law, thereupon W. C. Covert, surviving husband and temporary administrator of the estate of the ward, Mrs. S. V. Edrington Covert, deceased, acting under appointment of this Court, appeared in his representative capacity on behalf of the estate of said decedent, and represented the interest of...