Jirou v. Jirou

• Decision Date: 21 March 1910
• Citation: 136 S.W. 493
• Parties: JIROU v. JIROU et al.
• Court: Texas Court of Appeals

136 S.W. 493

JIROU v. JIROU et al.

Court of Civil Appeals of Texas.

March 21, 1910.

Rehearing Denied April 13, 1911.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Petition for certiorari by Lora Jirou against Mollie Jirou and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

See, also, 135 S. W. 114.

Dougherty, Conley & Gordon, for appellant. Greers & Nall and Parker & Hefner, for appellees.

PLEASANTS, C. J.

This proceeding was begun by a petition for certiorari filed by appellant in the district court for the Sixtieth judicial district, on September 29, 1906, against appellee Mollie Jirou, guardian, and against W. P. H. McFaddin and W. C. Averill. The petition alleges that a guardianship of the estate of plaintiff is pending in the county court of Jefferson county, the defendant Mollie Jirou being the guardian of said estate; that an order of sale had been made in said guardianship directing defendant Mollie Jirou to sell the interest of plaintiff in certain lands in Jefferson county described in the petition; and that in pursuance of said order a sale of said lands was made by the guardian to the defendants McFaddin and Averill, and had been confirmed by said county court.

The petition asks that the order of sale and the order confirming said sale be set aside upon the following grounds: "First, because the judge of the probate court, who made and entered the order of sale, and confirmed the sale as made, was disqualified for the reason that he was related by consanguinity within the third degree to W. P. H. McFaddin, and to the wife of W. C. Averill, the other purchaser of the property at the guardian's sale, and the order of sale and order confirming the sale were void; second, because the order of sale and order of confirmation were void for uncertainty in the description of the land purporting to be sold, and that such uncertainty of the description was calculated to deter bidders and thereby prevent the property from bringing its true value at said sale; third, because there was in fact no necessity for the sale, and that the guardian was induced to take out letters of guardianship on the estate of her daughter and to sell this property by reason of threats on the part of the purchasers to have a guardian appointed of the person and estate of the child, and her daughter taken from her."

Upon the filing and presentation of this petition to the district judge, he indorsed thereon an order for the issuance of a writ of certiorari, "provided the plaintiff file with the clerk a bond in a sum of not less than $250 and for such additional amount as the clerk should deem necessary." The bond was filed in accordance with this order, and the writ of certiorari issued. In response to this writ the record in the guardianship proceedings was properly sent up and filed in the district court.

On December 3, 1906, the defendants filed a plea in abatement in which it is averred, in substance, that, before filing her petition for certiorari, the plaintiff had commenced proceedings in the county court of Jefferson county in the nature of a bill of review in which the guardian, Mollie Jirou, was made defendant; that by this proceeding the plaintiff sought to obtain a final settlement by her said guardian and to recover from her the amount received for the sale of the lands to the defendants in this suit; and that said proceeding is still pending in said county court. The plea concludes with the following prayer: "Wherefore these defendants say, both by way of plea of abatement and to the jurisdiction of this court, that the county court has and retains full and complete jurisdiction and has complete and full power in said cause now pending before it, to adjudicate and determine all the issues herein, and that all of said issues are properly before said court in said cause No. 123 that can be adjudged and determined in this case. Wherefore they plead in abatement hereof, as well as to the jurisdiction of the court, and of this they pray judgment of the court."

This plea was heard and overruled by the trial court on the day on which it was presented. Thereafter, on January 6, 1907, the trial court by an order duly made and duly entered on the minutes of the court dismissed plaintiff's suit for want of prosecution.

After the adjournment of the term of the court, the plaintiff filed a motion to set aside the order of dismissal and reinstate the cause on the docket of the court. The defendants answered this motion by an exception or plea that said motion was in effect a motion for a new trial, and therefore the court was without jurisdiction to grant same at a term subsequent to that at which the order of dismissal was made. This plea was overruled by the court, and plaintiff's motion to reinstate was granted. On August 3, 1908, plaintiff filed her second amended petition, the material allegations of which are the same as those in the original petition before shown. To this amended petition the defendant Mollie Jirou filed an answer in which she admits the material allegations of plaintiff's petition to be true, and denies the allegations in her codefendant's answer that she was in collusion with plaintiff in the institution and prosecution of this suit.

On September 30, 1908, defendants McFaddin and Averill filed their second amended answer. This answer contains: First, a plea in abatement on the ground that the trial court was without jurisdiction to reinstate the case at a term of court subsequent to that at which it has been dismissed, and therefore said judgment of dismissal was in full force and effect and was a bar to any further proceedings herein. Second, a plea in abatement setting up the following facts: "For further grounds of abatement herein, these defendants come and say that this cause should be abated for the following reasons, to wit: That plaintiff herein, if she had any cause of action whatsoever, had and possessed two remedies; that is to say, plaintiff had the right to confirm said sale after reaching the age of 21 years and to proceed against her guardian or against her guardian and the sureties on the guardian's bond, for any proceeds realized from the sale of the property which plaintiff alleges she owned or was entitled to during her minority, or by a proper proceeding seek to avoid said sale, which plaintiff is attempting to do in this case. That plaintiff herein, with full knowledge of all her rights, elected to pursue the remedy first above mentioned; that is to say, to confirm said sale and to seek to recover the money realized therefrom, in that the plaintiff herein, Lora Jirou, having on, to wit, October 5, A. D. 1904, arrived at the age of 21 years, and so knowing her rights, did, on January 4, 1905, three months after arriving at said age of 21 years, cause to be instituted in the district court of Jefferson county, Tex., a suit against her guardian and one Vallery Blanchette, one of the bondsmen on her guardian's bond, and the only surviving bondsman thereon, which suit is known on the docket of the district court, Fifty-Eighth judicial district, as cause No. 5,030. That plaintiff herein in said suit confirmed said sale and sought to recover the sum of money realized therefrom with interest thereon. That said suit is still pending, and these defendants now attach hereto a copy of plaintiff's petition and ask that the same be considered in connection with this plea." Third, the plea in abatement contained in their original answer and based upon the proceedings in the county court seeking to recover from the guardian the money received by her from the sale of the lands to the defendants McFaddin and Averill, which we have before set out. And, fourth, a plea of limitation based on the claim that, the order of reinstatement being void, this is a new suit and is barred under the statute fixing the period of limitation for proceedings of this kind.

This answer also contains numerous exceptions, the nature of which it is unnecessary to state. It also contains, besides general and special denials of all of the material allegations of plaintiff's petition, a plea to the jurisdiction of the court on the ground that this proceeding is but a bill of review and could only be brought originally in the court in which the guardianship is pending. The other pleas contained in said answer are not material to any question presented on this appeal, and therefore their nature need not be stated.

When the cause was called for trial, a jury was demanded and impaneled, and the following agreement was made by counsel representing the plaintiff and defendants: "It is agreed between counsel for defendants and plaintiff that the pleas in bar, in abatement, and of election of remedies filed by the defendants shall be considered in connection with the case on its merits, and none of said pleas are waived by the defendants."

After hearing the evidence, the trial court instructed the jury to find a verdict for the defendants, and upon the return of such verdict a judgment was rendered "that the plaintiff take nothing by this suit, and that the defendants (naming them) go hence without day and recover of plaintiff all costs incurred herein."

The first assignment of error complains of the ruling of the trial court in sustaining appellees' exceptions to the allegations of the petition charging that the judge of the county court of Jefferson county who made the order of sale and the order confirming the sale of the land by the guardian to the other defendants herein was disqualified because he was related to both the defendants McFaddin and Averill within the third degree.

Under the Constitution and statutes of this state, no judge is qualified to try a case in which any party to the suit is related to him within the third degree, and our courts have uniformly held that a judgment rendered by a judge who is disqualified to try the case in which...