Hannon v. Henson

• Court: Texas Supreme Court
• Writing for the Court: Short
• Citation: Hannon v. Henson, 15 S.W.2d 579 (Tex. 1929)
• Decision Date: 27 March 1929
• Docket Number: (No. 1037-5230.)
• Parties: HANNON et al. v. HENSON.

Page 579

15 S.W.2d 579

HANNON et al. v. HENSON.

(No. 1037-5230.)

Commission of Appeals of Texas, Section B.

March 27, 1929.

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

Application by A. Henson, as guardian, in probate court to have a probate order entered nunc pro tunc. From an order of the district court granting the application, V. T. Hannon and others appealed to the Court of Civil Appeals , which affirmed the order without prejudice to an independent action by appellants to vacate the judgment, and V. T. Hannon and another bring error. Judgment of Court of Civil Appeals affirmed.

Sid Crumpton, of Texarkana, for plaintiffs in error.

Elmer L. Lincoln, of Texarkana, for defendant in error.

SHORT, P. J.

The controversy in this case has arisen from an application made by defendant in error, as guardian of the estate of two minors, filed in the probate court, to have a probate order, appearing on the judge's docket, entered on the minutes nunc pro tunc. This application was denied by the probate court, but, upon appeal to the district court of Bowie county, it was granted. The losing parties having appealed to the Court of Civil Appeals at Texarkana, upon an original hearing, an opinion was written denying the relief sought. This opinion was afterwards modified, if not, in fact, vacated by the court, which finally rendered an opinion granting the application without prejudice, however, to the rights of the appellants in that court, the plaintiffs in error here, to vacate the judgment in a suit brought for that purpose. We refer to the findings of fact, made by the Court of Civil Appeals, in the interest of brevity. 7 S.W.(2d) 613.

The assignments of error filed in the Supreme Court challenge the correctness of the opinion rendered by the Court of Civil Appeals in several particulars, but they really involve only two propositions. One of these is that, under the probate laws in force at the time the order was made, the probate court, after adjournment of the term, at which the order was entered, did not have the power to enter a nunc pro tunc order, for the reason that the statute prohibited making such an order, it appearing that a memorandum order was made upon the judge's docket only. The other proposition is that, at the time this memorandum entry was made on the judge's docket, the probate court of Bowie county had not acquired jurisdiction of the parties by reason of the alleged fact that no notice, such as the law required, had been given in the guardianship proceedings.

It appears from the findings of fact 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. This order was duly entered in the probate minutes. D. L. Henson qualified as guardian, gave the required bond, and had made and rendered an inventory and appraisement of the estate. The oath and bond were duly recorded in the probate minutes. On January 17, 1923, during the next succeeding term of the court, the notation mentioned was made by the probate judge on his probate docket. This notation is in these words: "January 17, 1923, temporary guardianship made permanent and O. M. Frier, W. W. Durham and R. T. Howell appointed appraisers. Bond fixed in double amount of appraised value of personal property." This order was not entered in the probate minutes. D. L. Henson, after the making of this notation, qualified as permanent guardian of the estate of the minors, and took charge of the estate, and administered it as such guardian until the July term of the court, 1926, when he was removed, and the defendant in error was appointed and qualified as permanent guardian. On April 18, 1927, the defendant in error filed in the probate court of Bowie county the application, above mentioned, alleging 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." He 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 plaintiffs in error, in response to citation served upon them, filed an answer to the application, alleging, among other things, the absence of any record showing that the probate judge did make such an order as would authorize the minutes to show that the guardianship was made permanent. They also alleged 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."

Articles 3211, 3212, 3218, 3219, of the Revised Statutes of 1911, in force at the time the order was made, bear upon the proposition first mentioned.

Article 3211:

"There shall be kept by the clerk of the county court a record book to be styled, `Judge's probate docket,' in which shall be entered:

"1. The name of each deceased person upon whose estate proceedings are had or sought to be had.

"2. The name of the executor or administrator of such estate, or of the applicant for letters, as the case may be.

"3. The date of the filing of the original application for the probate of a will, or for letters testamentary or of administration.

"4. A minute of all orders, judgments, decrees and proceedings had in the estate, with the date thereof.

"5. Each estate shall be numbered upon such docket in the order in which the proceedings therein have been commenced, and each paper filed in an estate shall be numbered with the docket number of such estate."

Article 3212:

"Said clerk shall also keep a record book to be styled, `Probate Minutes,' in which he shall enter in full all the orders, judgments, decrees and proceedings of the court, and in which shall be recorded all papers of estates required by law to be recorded."

Article 3218:

"All decisions, orders, decrees and judgments of the county court in probate matters shall be rendered in open court, and at a regular term of such court for civil and probate business, unless in cases where it is otherwise specially provided."

Article 3219:

"All such decisions, orders, decrees and judgments shall be entered on the records of the court, during the term at which the same are rendered; and any such decision, order, decree or judgment shall be a nullity unless entered of record."

Articles 4050, 4051, 4053, and 4083, of R. S. 1911, are necessary to be considered.

Article 4050:

"All decisions, orders and judgments of the court in matters of guardianship shall be rendered and entered on the minutes of the court at a regular term thereof, and in open court, except in cases where it is otherwise specially provided."

Article 4051:

"The provisions, rules and regulations which govern estates of decedents shall apply to and govern such guardianships, whenever the same are applicable and not inconsistent with any of the provisions of this title."

Article 4053:

"It shall be the duty of the county judge, at each regular term of his court, to call each case of guardianship upon his docket, and to make such orders therein as may be necessary, and to see that such orders, together with all papers required to be recorded, are entered upon the minutes, and to hold guardians and the officers of his court to a strict accountability for the performance of their duties with reference to guardianships."

Article 4083:

"The order of the court appointing a guardian shall be entered upon the minutes of the court, and shall specify," etc.

By article 3211, provision is made for the "judge's probate docket," which, by the expressed wording of the article, is made a record book. The judge's probate docket, for which article 3211 provides, is likewise a docket and record book to be used in cases of guardianship by virtue of the provisions of articles 4051 and 4053. The judge's probate docket is thus made a record in both guardianships and in "Estates of Decedents," and orders are required to be entered upon it, so that we have identically the same situation for which article 3219 provides, which is to the effect that any decision, order, decree, or judgment, which is not entered upon the records of the court during the term at which the same is rendered, shall be a nullity. Article 4051 has the legal effect to embrace in the law of guardianships not only article 3219, but all other "provisions, rules and regularities which govern `Estates of Decedents,'" applicable and not inconsistent with any of the provisions relating to the subject of "Guardian and Ward." In other words, articles 3211, 3212, and 3219 should be considered as though they appeared under title 64, "Guardian and Ward," these articles not being inconsistent with any article embraced under title 64. Thus we have the law as to guardianship, as follows: (1) That both a probate minute book and a judge's probate docket must be kept; (2) that both are records of the court; (3) that orders should be entered upon both the docket and the minutes; (4) that orders shall be a nullity unless entered of record.

It is apparent that it is only when an order is not entered of record that it is void. However, the uncontradicted evidence in this case is that the order was entered on the judge's probate docket, and this docket being made a record of the court, by the statute, article 3219, which denounces only orders not of record, can have no application. There is nothing in title 64 which says that an order is not of record where it is entered on the probate docket. It is true that orders should also be recorded upon the minutes, and the law of "Guardianships" and of "Estates of Decedents" directs the clerk to record them upon the minutes. Yet, there is no provision of the law, as applicable to the facts of this case,...