Halbert v. Alford

• Decision Date: 15 May 1891
• Court: Texas Supreme Court
• Parties: HALBERT <I>et al.</I> v. ALFORD.

16 S.W. 814

HALBERT et al. v. ALFORD.

Supreme Court of Texas.

May 15, 1891.

Commissioners' decision. Consent case. Appeal from district court, Dallas county; CHARLES FRED TUCKER, Judge.

W. S. Simkins and D. A. Eldridge, for appellants. Word & Reeves, for appellee.

MARR, J.

This is an agreed case under the statute. There is but one question presented for determination. The county court of Dallas county approved" the final account of Geo. F. Alford, appellee, as administrator of the estate of Earl Cravens, deceased, and ordered certain lands belonging to said estate to be sold for the purpose of paying said account. From that order or judgment the appellants, M. P. & H. A. Halbert, sole heirs of said Earl Cravens, deceased, prosecuted an appeal to the district court of Dallas county." The bond they gave to perfect their appeal was in all respects according to the terms prescribed by law in such cases, except that the words "decision" and "order" were omitted from the condition of the bond, and only the words "decree or judgment" used. Article 2201, Rev. St. On motion of the appellee, the appeal was dismissed in the district court for the want of a sufficient appeal-bond. From that judgment the appellants have appealed to the supreme court. The agreed question for our decision, therefore, is, did the court below err in holding the appeal-bond to be invalid, which was conditioned that appellants should "perform the decree or judgment which the district court shall make thereon in case the cause shall be decided against them," instead of being conditioned in the exact language of the article 2201, that they should perform "the decision, order, decree, or judgment" of the district court? It may not be difficult to understand why all of these words were used in article 2200 or in article 2204. It was done, doubtless, to make it plain that appeals in such cases were allowed from interlocutory orders as well as final judgments. Ordinarily, under our system of practice, appeals can only be prosecuted from final judgments or decrees. It was ordained otherwise in probate matters. The parties at interest are not required to wait for redress until the final disposition of the entire matter in the probate court. This much is evident. These words, however, appear to have always been used as now, not only in the provisions giving the right of appeal, but in declaring what shall be the terms of the appeal-bond. In other portions of our probate laws they are frequently used separately, and not always with accurate precision as to their technical significations, as understood or defined in those jurisdictions which observe the distinction between a judgment at law and a decree in chancery; nor in this indiscriminate use of the terms is the difference between a simple order and a final judgment disposing of the matter, and terminating the supervision and control of the court, recognized. Notably is this the case in articles 2143-2145, where the term "order" is apparently employed in lieu of "judgment." McFarland v. Hall, 17 Tex. 692. From this, as well as from the many other instances in which they are used without any critical attention to their technical meaning, it might well be inferred that they are used interchangably, and to denote the same thing in article 2201, as well as elsewhere in the probate laws. These terms are more or less cognate, as applied in the legal proceeding, and closely allied in meaning, especially under our system of practice, where we do not distinguish between forms of actions at law or suits in chancery. We generally, nay, almost invariably, both bench and bar, express or refer to the judicial determination of the controversy by the word "judgment." The term "order" is not infrequently used in a more restricted sense than the word "judgment." It may be defined to be a command, direction, or decision of the court or judge on some intermediate point or issue in the case, but without finally disposing of the main issue or issues in the cause. Then it is a mere interlocutor. That is the sense in which it is used in article 2200, as we think. But the term sometimes is given a more extensive signification, even in legal controversies, and is occasionally used as the synonym of "judgment" or "decree," as we have seen, and as appears from the definitions of the other terms.

We think, however, that generally, and if there is nothing in the language of the statute itself to indicate a different meaning, this term would denote merely an interlocutory judgment or decree. Freem. Judgm. § 15. A "decision" has been defined to be "a judgment given by a competent tribunal." Bouvier. This word also includes, in legal parlance, both orders and judgments, as well as the report or account of the opinions or judicial determinations of courts. Webster. A "decree" is "the judgment or sentence of a court of equity. It is either interlocutory or final." Bouvier. It embraces, therefore, orders as well as decrees in equity or admiralty. Webster. Lord Coke is reported to have said that "a judgment is the very voyce of law and right." That definition is too indefinite and too often lacking in verisimilitude to form a standard of comparison in individual cases. Freem. Judgm. § 1. A final judicial determination of a cause in any competent tribunal, though it may neither "voyce" the law...