Hobbs v. Boyd

• Decision Date: 02 March 1927
• Docket Number: (No. 7717.)
• Parties: HOBBS v. BOYD et al.
• Court: Texas Court of Appeals

292 S.W. 947

HOBBS v. BOYD et al.

(No. 7717.)

Court of Civil Appeals of Texas. San Antonio.

March 2, 1927.

Appeal from District Court, Bexar County; O. M. Fitzhugh, Judge.

Action by Louis Edward Hobbs against Arthur J. Boyd and others. A general demurrer and special exceptions to the petition were sustained, and plaintiff appeals. Affirmed.

Wm. C. Church, Douglas N. Lawley, and James V. Graves, all of San Antonio, for appellant.

Kelso & Kelso and Templeton, Brooks, Napier & Brown, all of San Antonio, and H. S. Garrett, of Fort Worth, for appellees.

FLY, C. J.

This is an appeal from a judgment of the district court sustaining a general demurrer and special exceptions to a petition filed by Nannie B. Lawley, on February 8, 1926, as guardian of Louis Edward Hobbs, a minor, who reached his majority shortly thereafter, and adopted the pleadings of the guardian as his own. The object of the suit was to set aside and nullify a decree of the district court in removing the disabilities of George W. Hobbs, a minor 19 years of age, on October 28, 1914, on a charge of fraud in misrepresenting that the minor was a resident of Bexar county, or in failing to represent where he resided, or that he was 19 years of age. The petition alleged that it was stated in the original petition of George W. Hobbs that he resided in Bexar county, and was over 19 years of age.

It is provided in article 5947, Rev. Stats. of 1914 (Vernon's Sayles') that:

"Any minor in this state over the age of nineteen years, who may desire to have his disabilities as a minor removed, shall, by a bill or petition, present to the district court of the county where he may reside the cause or causes existing which make it advisable or advantageous to said minor to have his disabilities removed, which bill or petition shall be sworn to by some person cognizant of the facts set out in said bill or petition."

In article 5948, Rev. Stats. of 1914, it is provided that the petition or bill shall be docketed on the trial docket of the court, and may be heard by the court either in regular order or at any time during term time, and the court hears the cause, and the court enters the decree, and causes it to be entered of record among the decrees and judgments of the court. The Supreme Court of Texas holds that an order removing the disabilities of a minor is not deemed in strict language the judgment of a court. Brown v. Wheelock, 75 Tex. 385, 12 S. W. 111, 841. In holding as it did in that case, the court said:

"If the proceeding should be deemed judicial, we should be compelled to hold the statute in conflict with the Constitution, for the reason that it attempts to confer upon the district courts a jurisdiction not embraced in their powers as defined by the Constitution."

That opinion was written in 1889 before the Constitution as to the jurisdiction of district courts had been amended, and may have been correct. However, in 1891, the Constitution was amended, and the jurisdiction of the district court greatly enlarged, and it is specially provided (article 5, § 8) that the district court shall have "original jurisdiction and general control over executors, administrators, guardians and minors, under such regulations as may be prescribed by law." In addition, as if to cover everything, it is provided:

"And shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law."

This language seems broad and comprehensive enough to embrace every case a court could be called upon to entertain, and yet, in 1911, the Supreme Court reiterated the ruling in the case of Brown v. Wheelock, cited herein, without reference to the Constitution as amended. Cunningham v. Robison, 104 Tex. 227, 136 S. W. 441. The last opinion in following the former case seemed to forget the amendment of 1891, which gave the district court jurisdiction of every case not specially given to some other court, and we contend that the decree of the district court as to removing the disabilities of the minor should have the same consideration and given the same verity as any other judgment of that court. Every presumption allowed as to any judgment should be allowed as to the judgment removing the disabilities of a minor. It may be that it is not essential to the decision in this case, but we deem it proper to call attention to the amendment of the Constitution of 1891, that met everything said in Brown v. Wheelock, as to the force and effect of a judgment removing the disability of minority, and holding that the judgment should be viewed as any other judgment of a court of competent jurisdiction.

It has been held that a failure to allege in the petition, or show on the record, that the minor desiring the removal of his disabilities resides in the county where the petition is filed, will render the judgment or decree void. Cunningham v. Robison, herein cited. In the petition in this case to set aside the judgment removing disabilities, it is alleged that neither the petition nor the decree shows the residence of the minor. The judgment recites that it was agreed that the petition and judgment were in words and terms as set out in the judgment in this case, and the first clause in the petition alleges that "your petitioner, George W. Hobbs, who resides in Bexar county," etc. It must be presumed that residence was proved as alleged. The agreement that the petition and order in the original case were as copied into the judgment to be used for no purpose cannot be sustained, and must have been intended to be used by the court, as they were used, to show whether or not the court had jurisdiction of the disability case. The court, it appears from the recitals in the judgment, used the copies of...