McDonald v. Edwards

• Decision Date: 23 July 1941
• Docket Number: No. 7528; Motion No. 15024.,7528; Motion No. 15024.
• Citation: 153 S.W.2d 567
• Parties: McDONALD et al. v. EDWARDS et al.
• Court: Texas Supreme Court

Page 567

153 S.W.2d 567

McDONALD et al. v. EDWARDS et al.

No. 7528; Motion No. 15024.

Supreme Court of Texas.

July 23, 1941.

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

Application for writ of certiorari by M. L. Edwards and others against D. L. McDonald and the National Life & Accident Insurance Company, Incorporated, to cancel an order of the county court directing the administratrix of the estate of Ed E. Galt, deceased, to convey certain land to the insurance company and to cancel the deed issued pursuant thereto. To review judgment of the Court of Civil Appeals, 115 S. W.2d 762, affirming that of the trial court, D. L. McDonald and the insurance company bring error. On motion for rehearing.

Affirmed.

Weeks, Hankerson & Potter, Charles F. Potter, and Neal Powers, all of Tyler, Clark, Harrell & Clark, of Greenville, and Black, Graves & Stayton, of Austin, for plaintiffs in error.

F. B. Caudle, of Mt. Vernon, and C. H. Machen, H. C. Chancellor, and Harold E. Wood, all of Dallas, for Edwards et al. and the Bank.

Wilkinson & Wilkinson, of Mt. Vernon, Jones & Jones, of Mineola, Paul Shenk, Jr., of Houston, and Slay & Simon and Gerald W. Greathouse, all of Fort Worth, for the Galts and Moore.

W. Edward Lee, of Longview, amicus curiae.

SHARP, Justice.

After a careful consideration of the motion for rehearing submitted herein, we have decided to withdraw the original opinion rendered on April 30, 1941, and the concurring opinion of Chief Justice Alexander, and substitute therefor the following opinion:

The estate of Ed E. Galt was being administered in the Probate Court of Franklin County. On the application of the administratrix the court entered an order authorizing her to convey to the National Life & Accident Insurance Co., Inc., a tract of land in cancellation of the Insurance Company's debt, which was secured by a first lien on the land. After the administratrix had executed and delivered the deed in accordance with the probate order, the heirs of the deceased Ed E. Galt, the First National Bank of Mt. Vernon, which held a second lien on the land, and other creditors sued out a writ of certiorari to the district court, and sought to have the probate order and the administratrix's deed annulled. A trial in the district court resulted in a judgment annulling both the probate order and the deed. The Insurance Company and D. L. McDonald, who in the meantime had purchased the land from the Insurance Company, appealed. The Court of Civil Appeals affirmed the judgment of the trial court. 115 S.W.2d 762.

The principal question presented here is whether the district court in such writ of certiorari proceeding had jurisdiction to set aside and annul the probate orders previously entered and to annul and cancel the deed executed by virtue of such orders, under which the sale of the land was made.

Section 16 of Article V of the Constitution, Vernon's Ann.St., confers upon the county court general jurisdiction in probate matters. Section 8 of Article V of the Constitution defines the jurisdiction of the district court. It provides that the district court shall have original jurisdiction "of all suits for trial of title to land and for the enforcement of liens thereon." It also provides that: "The District Court shall have appellate jurisdiction and general control in probate matters, over the County Court established in each county, for appointing guardians, granting letters testamentary and of administration, probating wills, for settling the accounts of executors, administrators and guardians, and for the transaction of all business appertaining to estates; and original jurisdiction and general control over executors, administrators, guardians and minors under such regulations as may be prescribed by law."

It is contended that the Court of Civil Appeals erred in holding that the district court had jurisdiction in a certiorari proceeding to enter that portion of its judgment which set aside the order authorizing the sale and the deed executed by the administratrix to the Insurance Company. This question involves the construction of certain articles of our Revised Civil Statutes.

Article 932 reads as follows: "Certiorari to county court. 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."

Article 933 provides that: "An application for writ of certiorari to the county court shall be made to the district court, or a judge thereof. It shall state the name and residence of each party adversely interested, and shall distinctly set forth the error in the proceeding sought to be revised."

Article 934 provides that a bond shall be executed as provided for in such article; and other articles specify the mode of perfecting such appeal.

Article 939 provides: "The cause shall be tried de novo in the district court, but the issues shall be confined to the grounds of error specified in the application for the writ. The judgment shall be certified to the county court for observance."

Article 4329 reads as follows: "Any person interested may also have any decision, order or judgment of the county court or county judge revised and corrected by writ of certiorari from the district court under the same rules and regulations as are provided in estates of decedents."

The statutes authorize any person aggrieved by an order or decree of the probate court to invoke the jurisdiction of the district court by a direct appeal or by certiorari. Articles 932 and 3698. It would serve no useful purpose to discuss here the rules relating to a direct appeal from the probate court to the district court, because that question is not involved here. For a discussion of the principles relating to such appeal, see 13 Tex.Jur. p. 639 et seq., and cases cited. We shall not confuse the issues by a discussion of the different methods of appeal authorized by statute, but will confine our discussion to the precise question before us—an appeal by certiorari.

We recognize that the jurisdiction of the district court in certiorari proceedings involving estates of decedents is appellate. Constitution, Article V, Section 8; Jirou v. Jirou, 104 Tex. 136, 135 S. W. 114; Buchanan v. Bilger, 64 Tex. 589; Heath v. Layne, 62 Tex. 686; Franks v. Chapman, 60 Tex. 46; Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932; 9 Tex. Jur. p. 25, § 6. While the statute provides that "any person interested in the estate" may have the proceedings of the probate court reviewed by certiorari and it is not necessary that all parties who may appear to be interested in the subject matter should join as plaintiffs, the rule, however, is that all the parties in interest, and whose rights will be directly affected by the decree, must be made parties defendant in the petition. 9 Tex.Jur. p. 31, § 13.

This Court has liberally construed the right of parties to invoke the jurisdiction of the district court in certiorari proceedings to review the orders of the probate court. Connell v. Chandler, 11 Tex. 249; Reynolds v. Prestidge, Tex.Civ.App., 228 S.W. 358; Williams v. Steele, 101 Tex. 382, 108 S.W. 155; Heaton v. Buhler, 60 Civ.App. 423, 127 S.W. 1078; Norris v. Duncan, 21 Tex. 594; Jirou v. Jirou, 104 Tex. 136, 135 S.W. 114; Linch v. Broad, 70 Tex. 92, 6 S.W. 751; 21 Tex.Jur. pp. 375-378, §§ 110 and 111.

The case of Connell v. Chandler, supra, involved certiorari proceedings sought to invoke the jurisdiction of the district court to revise and correct certain proceedings of the probate court. The petition prayed for certiorari to bring up for correction and revision the record of the proceedings of the county court, and, among other things, that the sale of land, a part of the homestead, be set aside and annulled, and that the land so sold be adjudged to petitioners. This Court, in passing upon a plea of misjoinder of parties, in that case said: "The objection that there was a misjoinder of parties is not tenable. It was proposed to bring in question the validity of the sale under which the defendant Fuller purchased. And it was certainly proper to make him a party to a proceeding in which his rights were to become directly the subject of adjudication. The rule is, that all the parties in interest, and whose rights are to be directly affected by the decree, must be made parties, in order that the Court may be enabled to render a decree which shall do ample and complete justice to all, and which shall bind all." (Emphasis ours.) The Court further in the course of the opinion specified that a particular description of the land was necessary, "in order to enable the Court, when it shall have obtained cognizance of the case, to set aside the land to which the plaintiff's wards are entitled, and to render a decree which shall do complete justice between all the parties." (Emphasis ours.)

The case of Jirou v. Jirou, supra [104 Tex. 136, 135 S.W. 116], also involved a certiorari proceeding filed in the district court. The petition alleged that a guardianship was pending in the County Court of Jefferson County, and that Mollie Jirou...