Hannon v. Henson
Decision Date | 06 March 1928 |
Docket Number | (No. 3492.) |
Citation | 7 S.W.2d 613 |
Parties | HANNON et al. v. HENSON. |
Court | Texas Court of Appeals |
Appeal from District Court, Bowie County; Hugh Carney, Judge.
Application by A. Henson, as guardian in probate court, to have a probate order entered nunc pro tunc. The application was denied and appeal taken to the district court. From an order of the district court granting the application, V. T. Hannon and others appeal. Affirmed, without prejudice to an independent action by appellants to vacate the judgment.
The appeal is from an order of the district court granting the application of appellee guardian to have a probate order entered nunc pro tunc. The probate court denied the application for such order. There was appeal by the guardian to the district court. It appears that on October 2, 1922, D. L. Henson, on his own application and without citation, was appointed temporary guardian of the estate of two minor children, both at the time under 14 years of age. The order was duly entered in the probate minutes. The guardian duly qualified as such, gave the required bond, and had made and returned an inventory and appraisement of the estate. The oath and bond were duly recorded in the probate minutes. On January 17, 1923, being the next succeeding term of the court, the notation was made by the probate judge on the judge's probate docket, namely:
This order was not entered in the probate minutes during that term of court or since. Whether or not citation required by article 4137, R. S., was issued and returned rests entirely upon extrinsic parol evidence. No citation and return were ever recorded in the probate minutes, and no official record thereof in any form appears to have been made. The files of the clerk of the court do not reflect issuance and return of any citation. The trial court made the finding, upon the parol evidence before him, namely:
This finding is challenged by the appellants. The oral evidence was to the effect that a citation was sent by the guardian's attorney to be published in the "Progressive Advertiser," a newspaper, a copy of the publication, or clipping from the newspaper, being offered in evidence. Such clipping purported to be an official citation, in accordance with the terms of the statute, addressed to the sheriff, and having the signature of the clerk of the court affixed thereto. The following evidence is the entire evidence concerning the return of the notice. The publisher of the newspaper testified:
There is no intimation whatever in the evidence that the sheriff ever received it or made return of the citation, or that it ever reached the clerk's office. It was shown only that in the county clerk's office there "was made diligent search for the original citation, and we could not find it." The probate judge testified:
It further appears that after the notation on the probate docket of January 17, 1923, D. L. Henson qualified as permanent guardian and took charge of the estate and administered the same until the July term of court, 1926, when he was removed and the appellee was appointed and qualified as permanent guardian.
On April 18, 1927, the appellee filed in the probate court the present application, setting up that the order of January 17, 1923, was entered on the judge's probate docket, but that "there is no order appearing in the probate minutes showing that said guardianship was made permanent," and prayed that such order be entered nunc pro tunc "upon the probate minutes at said time of January 17, 1923, as the order of the probate court making said guardianship permanent." The appellants, who were cited apparently as sureties, made answer to the application. They affirmatively pleaded, in contest of the legality of judgment nunc pro tunc, that the court was without jurisdiction to enter such character of order "because there is no notice or citation recorded in the minutes of the court as required by the statute showing that service had been completed; because there is no record showing that the probate judge did make an order or authorize the minutes to show that the guardianship was made permanent." The prayer of appellants was:
"That an order of this court be entered declaring that all proceedings, named herein are * * * without warrant of law and therefore null and void; for this and other relief the defendants will ever pray."
The findings made by the court are substantially stated above. Such findings fully appear in the record and need not be here copied.
Sid Crumpton, of Texarkana, for appellants.
Elmer L. Lincoln, of Texarkana, for appellee.
LEVY, J. (after stating the facts as above).
It may not be questioned that the entry upon the judge's probate docket of the permanent appointment of the guardian was competent and sufficient record evidence to establish the fact that such order was made and declared by the probate court at the term when it was made. West v. Keeton, 17 Tex. Civ. App. 139, 42 S. W. 1034, and other cases. The case of Threatt v. Johnson, 156 S. W. 1137, decided by this court, is not contrary to the above cases. In this Threatt Case no order making the guardianship permanent was entered on the judge's docket or in the minutes or otherwise in any record or memorandum form. But duly important and necessitating comment in the present case is the further established fact that the probate records are entirely silent as to issuance and return of citation evidencing jurisdiction of the probate court to make the order offered in evidence. The judge's order does not recite or refer to citation in the proceeding. There was no citation and return of record, or in the clerk's files, or in any official memorandum form in the probate rolls. It is the well-established rule that when the records of a court of general jurisdiction, as the jurisdiction of the probate court is considered in this state, showing an adjudication in a common proceeding, comes in question collaterally, service will be presumed when the record is silent. Guilford v. Love, 49 Tex. 715, and other cases. This means that the party introducing the record need not produce the process nor the return, as the presumption is that they are regular and rightful. Yet, as is also the established rule, as to the question of jurisdiction, the judgment declared is not conclusive and can be impeached by proper pleading, in direct attack of illegality. The appellants specially set up the affirmative plea that there is no such matter of record existing, and tendered issue in that form, as to jurisdiction of the court to enter the order at all. Such plea is permissible pleading, and can be made available in a proceeding nunc pro tunc. Defects of jurisdiction appearing in the face of the record may be taken advantage of on its production under such plea attacking the record. The plea is in purpose and effect a direct attack upon the jurisdiction of the court, in impeachment of the record, by affirmative averment showing its absence of record.
The conceded general rule is that in any case where the court did actually render a formal judgment, but the same has not been spread at large upon the minutes of the court, in consequence of neglect or of any accident, the court has the inherent power to order that the judgment once pronounced be entered nunc pro tunc, upon the production of proper evidence to establish the fact of the judgment and to show its terms and character and the relief granted. We doubt such practice must be taken with the restriction, as held, that such entry nunc pro tunc is not proper unless at the date to which the judgment is to relate back a final judgment could then legally have been entered immediately, as within the jurisdiction of the court to do, and that an order entered up at a former term not sanctioned by law cannot be entered nunc pro tunc. Wheeler v. Duke, 29 Tex. Civ. App. 20, 67 S. W. 909. The rule is to the contrary of that practice. So trying the issue raised under the pleading by an inspection of the rolls of the probate court it is apparent from the face thereof that the appellants' allegations are sustained that evidence in any form of the issuance and actual return of citation did not appear on the record or in the files of the probate court. The power of the probate court to appoint a permanent guardian is statutory, and the citation and return prescribed by statute is jurisdictional to the exercise of that authority. Articles 4123, 4137, R. S. The statute expressly requires the citation and return to be placed of record at large in the probate minutes. Article...
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