Jirou v. Jirou

• Decision Date: 08 March 1911
• Parties: JIROU v. JIROU et al.
• Court: Texas Supreme Court

135 S.W. 114

JIROU v. JIROU et al.

Supreme Court of Texas.

March 8, 1911.

Certified Questions from Court of Civil Appeals, First Supreme Judicial District.

Proceeding by Lora Jirou against Mollie Jirou and others, begun by certiorari in the district court. Judgment for the defendants, and plaintiff appeals to the Court of Civil Appeals. Motion to dismiss appeal overruled, and judgment reversed and cause remanded for new trial, and defendants move for a rehearing. Questions certified by the Court of Civil Appeals to the Supreme Court. Questions answered in the negative.

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

BROWN, C. J.

This is a certified question from the Court of Civil Appeals of the First Supreme Judicial District. The statement and questions are as follows:

"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 therefore 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 proposed 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 $250.00 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. At the December term, 1906, of the court, the defendants filed their answer, and the cause was set for trial on January 5, 1907. On the day named plaintiff failed to appear in person or by attorney, and, on motion of attorney for the defendant, the cause was dismissed for want of prosecution. The term of the court expired January 27, 1907. Thereafter, on March 11, 1907, the plaintiff filed the following motion to reinstate the cause: `Lora Jirou v. Mollie Jirou, W. P. H. McFaddin, et al. No. 5,873. In District Court, Jefferson County, Texas. ____ Term, 1908. To the Honorable Judge of Said Court: Now comes the plaintiff amending her original motion filed herein March 11, 1908, and shows to the court that on the 5th day of December, 1907, the above styled and numbered cause was pending herein, being upon the nonjury docket, and on said day Hal W. Greer, Esq., the leading attorney for the defendant, in the absence and without the knowledge or consent of plaintiff or her attorney, Matt Cramer, induced the court to set said cause for hearing on the 5th day of January, 1908, that on said last-named date plaintiff and her attorney failing to appear, said cause was dismissed for want of prosecution. And plaintiff further shows to the court that said case was so set with the understanding that plaintiff or her attorney should be notified and their assent secured thereto; that, when said cause was set, plaintiff's attorney was seriously ill; that on the 6th day of December, 1907, said Greer's notice was received by plaintiff's attorney, and on the 9th day of December, 1907, said attorney notified said Greer by letter that he was seriously ill, and could not make any agreement in reference to said case; that her said attorney was still ill on the day set for trial, and remained so for more than a month thereafter, and until after the close of the term of said court on the 25th of January, 1908, and during no part of such time being able to leave his room;...