Newson v. Chrisman

• Decision Date: 01 January 1852
• Citation: 9 Tex. 113
• Parties: NEWSON, GUARDIAN, v. CHRISMAN.
• Court: Texas Supreme Court

9 Tex. 113

NEWSON, GUARDIAN,

v.CHRISMAN.

Supreme Court of Texas.

1852.

Where the petition for a certoirari to the Probate Court alleged that at the time of the trial he was necessarily absent from the county on important business of the estate, and that he had employed an attorney of the court to represent him, but he had been detained by the severe sickness of his family, alleging also that he was entitled to large credits which had not been allowed, and showing satisfactory reasons why he had not taken an appeal, it was held that the writ was properly issued.

The District Court has jurisdiction, independent of the 15th section of the IVth article of the constitution, to act directly and originally upon executors, administrators, and guardians to prevent frauds and fraudulent combinations that might result in the destruction of the rights of those interested in the estate. (Note 28.)

The 10th section of the IVth article of the constitution gives to the District Courts all the common-law and chancery jurisdiction known to the common law and chancery of England, not incompatible with the Constitution of the United States and of this State and laws under them.

The proceedings of the Probate Court may be brought into the District Court either by appeal under the 15th section of the IVth article of the constitution and the laws enacted in pursuance thereof, or showing good cause why an appeal was not taken, and sufficient ground for apprehending that injustice has been done by certiorari under the 10th section of the same article.

Where the proceedings of the Probate Court are brought into the District Court by certiorari it is the duty of the latter court either to dismiss the certiorari if it has been improperly awarded, or to try the matter de novo, and certify the decree back to the Probate Court to be carried into execution. (Hart. Dig., art. 718.)

Appeal from Washington. Chrisman had been appointed administrator of one Stephen Jordan in 1839; had given bond and returned an inventory; and it did not appear that anything further had been done until Newson, representing himself to be the guardian of Albert and Ann, minor heirs of said Jordan, filed a petition in their behalf in 1851, that said Chrisman be required to settle his account, &c. Chrisman was duly notified, and failing to appear, the Probate Court made a decree against him. This was at the April Term, 1851. At the May Term Chrisman appeared and moved to set aside the decree, which motion was refused. On the 8th of July thereafter Chrisman obtained a writ of certiorari. The petition for the certiorari set forth that at the April Term the petitioner was necessarily absent from the county on important business of the estate; that before leaving he had employed an attorney of the court to represent him, but he had been detained by the severe sickness of his family; that he had paid out large sums of money for the estate for which he should have had credit, & c.; and that Newson was not guardian, as he represented himself to be.

The District Court reversed the decree and remanded the case for a new trial to the Probate Court.

A. M. Lewis, for appellant.

J. E. Shepard and J. Sayles, for appellee.

LIPSCOMB, J.

From the view we have taken of this case it is not considered material to look beyond the proceedings of the District Court.

It appears that a balance to a very large amount had been struck by the probate judge against the administrator. He was not present when the account was struck by the probate judge; he had however been cited to appear and render in his account. He applied to the judge of the District Court for a certiorari to take the case into the District Court, and rested his application on grounds that seem to be sufficient. Although he had been cited to appear, yet from circumstances that ordinary care and foresight could not have anticipated, he was not present in person or by his counsel, and the proceedings against him were therefore in point of fact ex parte. After the case had been taken to the District Court by certiorari, that court after hearing argument reversed the decree or order of the Probate Court, and remanded the cause without instructions or showing the grounds for so remanding it.

The judgment of the District Court was appealed from, and it is assigned for error that the judgment is erroneous. We believe that this assignment is well taken and that it must be sustained. By the 15th section of the judicial department of the State Constitution, it is provided as follows, i. e.: “The District Courts shall have original and appellate jurisdiction and general control over the said inferior tribunals, and original jurisdiction and control over executors, administrators, guardians, and minors under such regulations as may be prescribed by law.” (Hart. Dig., p. 64.) It would seem that after conferring the jurisdiction it left the mode of exercising that jurisdiction to be prescribed by the Legislature. The action of the Legislature on the subject will be found in the 642d article, Hartley's Digest. It is as follows: “The District Court shall have and exercise appellate jurisdiction and general control over such inferior tribunals as have or may be established in each county for appointing guardians, granting letters testamentary and of administration, for settling the accounts of executors, administrators, and guardians, and for the transaction of business appertaining to estates, and original jurisdiction in probate matters only in case where the judge or clerk of probate is interested.” It will be seen that legislation on this subject is not explicit; and it may be doubtful whether the object of the Constitution has been carried in its effect. It has never been decided, in express terms, that the original jurisdiction given to the District Court by the Constitution can be exercised in the absence of express legislation, yet in the case of Chevallier v. Wilson and Wife, (1 Tex. R., 164,) such an exercise of jurisdiction was acted upon in this court, and not repudiated nor affirmed, the case resting upon its peculiar features. In the case of Long et al. v. Wortham (4...