Holland v. Nimitz

• Decision Date: 15 March 1922
• Docket Number: (No. 3452.)
• Parties: HOLLAND v. NIMITZ et al.
• Court: Texas Supreme Court

Page 185

239 S.W. 185

HOLLAND v. NIMITZ et al.

(No. 3452.)

Supreme Court of Texas.

March 15, 1922.

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

On rehearing. Motion granted, and judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause for new trial affirmed, the trial court to be governed by this opinion.

For main opinion, see 232 S. W. 298, which affirmed 217 S. W. 244.

Critz & Woodward, of Coleman, and Blanks, Collins & Jackson, of San Angelo, for plaintiff in error.

Wright & Harris, of San Angelo, for defendants in error.

GREENWOOD, J.

Robert S. Holland filed in the county court of Tom Green county an application to probate an instrument as the will of his deceased mother, Mrs. Susan E. Holland. Mrs. Nimitz and others, daughters of Mrs. Holland, joined by their husbands, contested the probate of the instrument, on the grounds, first, that Mrs. Holland was without testamentary capacity, and, second, that she was under undue influence from Robert S. Holland. Trials in the county court and in the district court, to which an appeal was taken, resulted in the probate of the instrument presented by Robert S. Holland.

On an appeal from the judgment of the district court by the contestants, Mrs. Nimitz and others, the Austin Court of Civil Appeals held that it was reversible error for the district court to refuse to permit Mrs. Nimitz to testify that, independently of any statements made by Mrs. Holland, or of any transaction with her, she was of the opinion that Mrs. Holland was insane when the instrument offered for probate was signed, such opinion being based entirely on observation of Mrs. Holland's acts, conduct, and condition, over the objection that such testimony was inhibited by article 3690 of the Revised Statutes of 1911. The Austin Court of Civil Appeals also held that there was error in the action of the district court in excluding testimony by Mrs. Nimitz that, when her mother was brought to her son's home during her last illness, no preparations had been there made to take care of her, and that the wife of Robert S. Holland neglected her, and was unkind to her. For these errors the Austin Court of Civil Appeals reversed the district court's judgment, and remanded the cause for another trial. 217 S. W. 244.

A writ of error having been granted, the cause was referred to the Commission of Appeals, who recommended that, while there was error in the decision that article 3690 did not preclude the admission of the testimony of Mrs. Nimitz with reference to her mother's sanity, based on observation of her acts, conduct, and condition, yet the judgment of the Court of Civil Appeals should be affirmed, without inquiry into the correctness of the decision that the district court erred in refusing to admit the testimony of Mrs. Nimitz that no preparations were made to care for Mrs. Holland when brought to her son's home during her last illness, and that she was neglected and treated unkindly by her son's wife. The conclusion of the Commission of Appeals reflected the view that the assignment complaining of the rejection of this latter testimony, save in so far as it involved the construction of article 3690, was not within the appellate jurisdiction of the Supreme Court. The judgment recommended in the Commission's opinion was adopted, and was entered as the judgment of the Supreme Court.

Plaintiff in error, Robert S. Holland, has filed a motion for rehearing, upon the ground that the Supreme Court erred in refusing to consider his assignment of error complaining of the decision of the Court of Civil Appeals that the district court erred in refusing to admit the testimony of Mrs. Nimitz that when Mrs. Holland was brought to her son's house no preparations had been made to take care of her, and that her daughter-in-law was unkind to her and neglected her. It is the contention of plaintiff in error that, where the Supreme Court has jurisdiction of a case like this, wherein the writ of error was granted because of a conflict with other decisions of Courts of Civil Appeals and of the Supreme Court, or because the construction of a statute is involved, then such jurisdiction extends to all the properly presented questions of law in the case. A careful examination of the various constitutional and statutory provisions relative to the Supreme Court's appellate jurisdiction, to be exercised through grant of writs of error, leads us to conclude that the contention of plaintiff in error is sound.

Under the amendment to the Constitution, declared adopted on September 22, 1891, the appellate jurisdiction of the Supreme Court, which is coextensive with the limits of the state, extends to questions of law only, under such restrictions and regulations as the Legislature may prescribe, in cases of which the Courts of Civil Appeals have appellate jurisdiction.

The act of April 13, 1892, made the appellate jurisdiction of the Supreme Court extend to questions of law in all civil cases of which the Courts of Civil Appeals had appellate but not final jurisdiction, provided, however, such jurisdiction was to be exercised by the grant of writs of error only after final judgments had been rendered in the Courts of Civil Appeals, and not after judgments reversing and remanding causes, except in the following cases: (1) Cases to which the railroad commissioners were parties; (2) cases involving the construction and application of the Constitution of the United States or of the state or of an act of Congress; (3) cases involving the validity of a state statute; (4) cases involving title to a state office; (5) cases in which a Court of Civil Appeals overruled its own decisions or those of another Court of Civil Appeals or of the Supreme Court; (6) cases in which the judges of any Court of Civil Appeals might disagree; (7) cases in which any two of the Courts of Civil Appeals might hold differently on the same question of law; and, (8) cases in which the judgment of the Court of Civil Appeals practically settled the case. Writ of error was to be granted by the Supreme Court when it appeared from an inspection of the petition therefor, and of the record, that there was error in the judgment of the Court of Civil Appeals, and in each case the Supreme Court was empowered to affirm or reverse and render, or reverse and remand if the justice of the case demanded another trial. 10 Gammel's Laws of Texas, 384, 385, 386; Batts' Ann. Tex. Civil Statutes, arts. 941, 943, 972.

The question soon arose, under the Act of April 13, 1892, as to whether the Supreme Court was limited to the determination of the question or questions on which its jurisdiction depended in cases reversed and remanded in the Courts of Civil Appeals. It was settled by the decision in City of Austin v. Nalle, 85 Tex. 538, 539, 22 S. W. 668, 960, that the legislative intent was evident that, whenever a case was brought before the Supreme Court on writ of error, all questions properly raised and presented should be decided, in order that the judgment be entered in the Supreme Court which should have been entered in the Court of Civil Appeals.

The appellate jurisdiction of the Supreme Court was also held to extend to all questions of law in a case involving the validity of a statute originating in the county court. In announcing that decision, the Supreme Court, per Justice Williams, said:

"It is the case, not merely the question as to the statute, over which the jurisdiction is extended by the language. The existence of the question is the reason why the jurisdiction is given, but it is the case that is brought within it. It follows that, having decided the question of the validity of the statute, we must proceed to dispose of the case by the proper judgment and, in order to do that, must decide the questions of law on which the character of the judgment must depend." T. & P. Ry. v. Webb, 102 Tex. 215, 114 S. W. 1173.

The act of March 28, 1913, amended the articles defining and regulating the appellate jurisdiction of the Supreme Court, so as to read as follows:

"Art. 1521. The Supreme Court shall have appellate jurisdiction coextensive with the limits of the state, which shall extend to questions of law arising in civil causes in the Courts of Civil Appeals in the following cases when same have been brought to the Courts of Civil Appeals by writ of error, or appeal, from final judgments of the trial courts:

"(1) Those in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision.

"(2) Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any such question of law.

"(3) Those involving the validity of statutes.

"(4) Those involving the revenue laws of the State.

"(5) Those in which the Railroad Commission is a party.

"(6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion of the Supreme Court, erroneously declared the substantive law of the case, in which case the Supreme Court shall take jurisdiction for the purpose of correcting such error.

"Art. 1522. All causes mentioned in article 1521 may be carried to the Supreme Court either by writ of error or by certificate from the Court of Civil Appeals as elsewhere provided, except those mentioned in subdivision 6, which must be presented by application for writ of error. * * *

"Art. 1543. If upon inspection of the petition for writ of error and the record of the cause, it shall appear that a Court of Civil Appeals has failed to file conclusions of fact, or has not complied with the requirements of the law in filing such conclusions, and that such conclusions are necessary to enable the Supreme Court properly to determine the rights of the parties, the courts may suspend action on the ...