Jones v. Wynne

• Decision Date: 07 June 1939
• Docket Number: No. 1797-7277.,1797-7277.
• Citation: 129 S.W.2d 279
• Parties: JONES et al. v. WYNNE et al.
• Court: Texas Supreme Court

129 S.W.2d 279

JONES et al. v. WYNNE et al.

No. 1797-7277.

Commission of Appeals of Texas, Section B.

June 7, 1939.

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

Proceeding by Helen Lidelle Jones and others against G. A. Wynne and another for a writ of certiorari to review the action of the probate court in approving the claim of G. A. Wynne against the estate of Helen M. Jones, deceased. An order sustaining a general demurrer to the petition and quashing the writ of certiorari theretofore issued was affirmed by the Court of Civil Appeals, 104 S.W.2d 141, and plaintiffs bring error.

Judgment of Court of Civil Appeals affirming judgment of the trial court affirmed.

J. S. Bracewell and C. A. Leddy, both of Houston, for plaintiffs in error.

Dean & Humphrey, of Huntsville, for defendants in error.

TAYLOR, Commissioner.

The children and heirs at law of Helen M. Jones, deceased, filed in the district court a petition in which G. A. Wynne and J. B. Jones, the surviving husband of Mrs. Jones and father of her children, were named as defendants. Plaintiffs sought by the petition to review by certiorari in the district court the action of the probate court in approving the claim of Wynne, which was allowed by Jones as administrator against the estate of Mrs. Jones for the amount of three notes signed by her aggregating $16,386. The district court sustained a general demurrer to the petition and dismissed the writ of certiorari as having been improvidently granted. The Court of Civil Appeals affirmed the judgment. 104 S.W.2d 141. Application for writ of error was granted upon the application of the children of Mrs. Jones, who will be designated here as plaintiffs. Wynne and Jones, defendants in error, will be designated as defendants when referred to collectively.

Two questions are presented: (a) whether the district court is authorized to review by certiorari the action of the probate court in approving the claim in question; and (b) whether, in event the remedy by certiorari does not lie, plaintiffs' petition filed in the district court states a good cause of action as an original suit in that court.

The questions will be considered in the order stated.

Plaintiffs contend that the district court has jurisdiction to review by certiorari the action of the probate court in approving the claim in question under the provisions of article 932, R.C.S.1925. The article reads: "Article 932. Any person interested in the estate of a decedent or ward may have the proceedings of the county court therein revised and corrected at any time within two years after such proceedings were had, and not afterward. Persons non compos mentis, infants and femes covert shall have two years after the removal of their respective disabilities within which to apply for such revision and correction."

The foregoing article is not incorporated in either of the titles of the statutes which deal exclusively with probate proceedings and make provision for review of such proceedings exclusively, but is found in the title (27) which deals with the general subject of certiorari to the county and justice courts. It will be noted that it does not purport to provide a method of review for any special action of the probate court.

Defendants contend that the legislature in providing in article 3525, R.C.S. 1925, for review by direct appeal of the special action of the court in approving or disapproving a claim, intended to make such method of appeal the exclusive remedy. That article reads: "Article 3525. The action of the court in approving or disapproving a claim shall have the force and effect of a final judgment, and when the claimant, or any person interested in the estate, shall be dissatisfied with such action, he may appeal therefrom to the district court, as from other judgments of the county court rendered in probate matters."

The same respective contentions were made by the parties in Dunaway v. Easter, Tex.Civ.App., 119 S.W.2d 421, now pending in this Court, 129 S.W.2d 286. The Court of Civil Appeals in that case concluded that the district court was authorized to review by certiorari the action of the probate court in approving the claim against the decedent's estate there involved, citing as the leading authority in support of its holding the majority opinion in Puckett v. McCall, 30 Tex. 457. Plaintiffs in the present case also cite this opinion as the leading authority in support of their similar contention.

We think it would profit little toward deciding the question under consideration to discuss the Puckett case, even if it sustained the proposition to which it is cited which we need not decide. It arose prior to the adoption of the constitution of 1876. It appears to have been settled by the decisions under the constitution of 1845 and the statutes enacted pursuant thereto, that while orders generally of the probate court could be revised by both direct appeal and certiorari, as well as by bill of review, the special action of the court in approving a claim was not "such an order or decree or proceeding in the county court as could be appealed from or revised upon certiorari by the district court." It appears to have been the most generally accepted view that such could be set aside only by an original proceeding commenced in the district court for that purpose. Heffner, Adm'r v. Brander et al., 23 Tex. 631; Neill v. Hodge, 5 Tex. 487; Toliver v. Hubbell, 6 Tex. 166; Jones' Adm'r v. Underwood, 11 Tex. 116; Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118; Eccles v. Daniels, 16 Tex. 136; Hillebrant v. Burton's Heirs, 17 Tex. 138; Lott v. Cloud, 23 Tex. 254; Mosely v. Gray, 23 Tex. 496; Giddings v. Steele, 28 Tex. 732, 91 Am.Dec. 336; Howard v. Johnson, 69 Tex. 655, 7 S.W. 522.

However that may be, the constitution of 1876 and the statutes passed pursuant thereto have made changes with respect to the probate procedure. Const. of 1876, Art. V, secs. 8 and 16, Vernon's Ann.St. Such statutes having been four times codified and subdivided into titles more or less complete within themselves, dealing with, among other subjects, that of the review of the proceedings of the probate court in transacting "all of the business appertaining to the estates of deceased persons, minors," etc. Title 54 of the present (1925), Vernon's Ann.Civ.St. art. 3290 et seq., codification deals with the subject of "Estates Of Decedents" and title 69, Vernon's Ann.Civ.St. art. 4102 et seq., with that of "Guardian And Ward." It is pertinent, we think, to point out in the present codification the identity in content and meaning of the corresponding statutes in the two titles which provide the methods of review of the proceedings relating to the two subjects respectively, especially since such identity appears to have obtained in all of the revisions of the statutes, including the first in 1879, and since this Court in De Cordova v. Rogers, 97 Tex. 60, 75 S.W. 16, which construes the statutes bearing upon the proper method to review the action of the probate court in approving the guardianship claims there in question, is deemed controlling here. It is cited by the Court of Civil Appeals in the present case and is relied upon by defendants, as the leading authority in support of its holding that the district court was not authorized to review by certiorari the action of the probate court in approving Wynne's claim against the estate of Mrs. Jones.

The identity of the corresponding statutes in the present codification will now be shown by a brief summarization of those deemed pertinent.

Article 3698, relating to proceedings had with respect to estates of decedents, provides that any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court, shall have the right to review same by direct appeal therefrom to the district court upon complying with the provisions stipulated.

Review of orders generally in guardianship proceedings by both bill of review and certiorari, respectively, is provided for by article 4328, referred to in the De Cordova case and hereinafter quoted, and article 4329 which provides that any person interested may also have any decision, order or judgment of the county court revised by writ of certiorari from the district court "under the same rules and regulations as are provided in estates of decedents."

The above summary discloses the respective provisions made by the corresponding statutes dealing with the methods of review of orders generally of the probate court provided thereby respectively. Article 932, supra, adds nothing to the provisions summarized so far as the present proceeding is concerned.

Review of the special action of the probate court in approving or disapproving a claim in proceedings relating to estates of decedents is made by article 3525 quoted above. Review of such specific action of the court in guardianship proceedings is provided for in articles 4250 and 4252 which read:

"Art. 4250. * * * Such order of approval or disapproval shall have the force and effect of a judgment."

"Art. 4252. When a claimant or any person interested in a ward shall be dissatisfied with the action of the court in approving or disapproving a claim in whole or in part, he may appeal therefrom to the district court, as in other cases."

The identity in content and meaning of article 3525, and articles 4250 and 4252 combined, is obvious, as well as that in the corresponding statutes providing for review of orders generally in probate proceedings.

The review sought to be had in the De Cordova case was by bill of review as provided by article 4328 for review of orders generally of the probate court in guardianship matters, the question involved being with respect to the correctness of the method there followed in reviewing the action of the court in approving certain guardianship claims. The article referred to reads: "Art. 4328. Any person interested may, by a bill of...