Hines v. Givens
Decision Date | 03 May 1902 |
Parties | HINES et al. v. GIVENS et al.<SMALL><SUP>1</SUP></SMALL> |
Court | Texas Court of Appeals |
Appeal from district court, Dallas county: Richard Morgan, Judge.
Action by Roy Hines and others against Mrs. S. E. Givens and others. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.
Jeff Word, for appellant Hines. Morris & Crow and Taylor & Coombes, for appellees.
Appellants sued to recover on a bond given by their father, M. Hines, as survivor in the community estate of himself and his deceased wife, the mother of appellants. The petition shows: That, on the death of Mrs. Hines, M. Hines, in July, 1885, applied to the county court of Dallas county to be appointed to administer the community estate as survivor. An inventory and appraisement of said estate were duly made and filed. Said Hines executed a statutory bond, with G. W. Givens and A. B. Floyd as sureties, which was duly approved by the county judge, who caused the proper order in relation thereto to be entered upon the minutes of the probate court. The bond was regular in every respect, except it was for the amount of $1,753, when the amount of the appraisement was $2,158. Thereafter, on July 22, 1885, said M. Hines presented to the county court of Dallas county another bond, for the amount of $2,158, with W. R. Robinson, Thos. J. Pollard, J. T. Smith, and E. A. Belt as sureties, conditioned as required by a community survivor under the statute, on which the county judge indorsed: Also: Said instrument was duly recorded, and upon the court minutes was entered the following: That said last bond was made and executed without any order requiring it to be made, without any citation, "or without any antecedent proceedings or orders with reference thereto, and without there existing any of the grounds, reasons, facts, or conditions requiring or authorizing the giving of a new bond," etc. That no necessity existed for a new bond, and none of the prerequisites under the law were had, pertaining to the execution of a new bond. That after the approval of the first bond said Hines took control of said estate, etc., and, by proper averments, showed a disposal of same; but said disposition was shown to have been after the execution of the first bond, and giving of the second. The court sustained a general demurrer to the plaintiffs' petition, whereupon plaintiffs dismissed their cause of action on the second bond, and refused to amend, whereupon the suit was dismissed by the court, from which plaintiffs prosecute this appeal.
The allegations of plaintiffs' petition were full as to the grounds upon which a recovery was sought, and it is unnecessary to state them here, as the foregoing statement is sufficient to show the basis of the recovery sought by plaintiffs and upon which the court predicated its ruling.
The only issue presented is the effect to be given the second bond given by Hines, and approved by the county judge. Appellants contend that, by the proceedings approving the first bond tendered by M. Hines, the order of court appointing him administrator of the community estate, and authorizing him to control, manage, and dispose of same, removed him from the jurisdiction of the probate court, except in certain contingencies, none of which, it is claimed, existed, and the taking of the new (or second) bond...
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...as to district courts. Carter v. Carter, 237 Mo. 624, 141 S. W. 873;Deweese v. Yost, 161 Mo. App. 10, 143 S. W. 72;Hines v. Givens, 29 Tex. Civ. App. 517, 68 S. W. 295;Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276; George v. Norris, 23 Ark. 121; Estate of Davison, 100 Mo. App. 263, 73 S. ......
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