Norton v. Cheney, 2339-7578.

• Decision Date: 18 March 1942
• Docket Number: No. 2339-7578.,2339-7578.
• Parties: NORTON et al. v. CHENEY.
• Court: Texas Supreme Court

Page 73

161 S.W.2d 73

NORTON et al. v. CHENEY.

No. 2339-7578.

Commission of Appeals of Texas. Section A.

March 18, 1942.

Motion for Rehearing Denied April 22, 1942.

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

Action in the nature of a bill of review to set aside orders in a guardianship proceeding by George H. Cheney against H. L. Norton and others. From an order of the District Court reversing an order of the probate court and denying the relief sought, the plaintiff appealed to the Court of Civil Appeals, 126 S.W.2d 1011, which reversed the judgment and dismissed the entire proceeding, and H. L. Norton and others bring error.

Reversed and remanded to the Court of Civil Appeals with directions.

Albert B. Hall, of Dallas, for plaintiffs in error.

John G. Wilson, of Dallas, for defendant in error.

HICKMAN, Commissioner.

This proceeding had its origin as an action in the nature of a bill of review to set aside all of the orders in a guardianship proceeding in the probate court. On May 7, 1941, by memorandum opinion it was held that, since the record disclosed that land had been sold in the proceeding under orders of the court, the county court was without jurisdiction to entertain the proceeding, and that same should accordingly be dismissed. Our memorandum opinion was based upon an opinion of the court released on April 30, 1941, in the case of Jones v. Sun Oil Company. Thereafter that opinion was withdrawn and, on rehearing, the jurisdiction of the county court to entertain such proceeding was upheld. Tex.Sup., 153 S. W.2d 571. We accordingly withdraw our former memorandum opinion in this case and substitute this opinion on rehearing therefor.

The relief sought by Cheney was granted by the county court and a judgment entered annulling and setting aside all of the orders in the entire guardianship proceeding. On appeal to the district court the judgment of the county court was reversed and vacated and Cheney was denied any relief. Findings of fact and conclusions of law were filed by the judge of the district court. Cheney appealed to the Court of Civil Appeals. That court dismissed the entire proceeding upon the ground, primarily, that the bill of review sought nothing more than a declaratory judgment, which character of judgment is not sanctioned in this jurisdiction. 126 S. W.2d 1011, 1012.

The principal holding of the Court of Civil Appeals is reflected by this language taken from the opinion: "Texas courts are not now empowered to render declaratory judgments as such; 25 Tex.Jur.Judgments, Sec. 10, p. 375; though authorized by statutes in many other jurisdictions. This character of decree contemplates a binding declaration of right or status without consequential relief or executory process. On the other hand, the decisions of this state require that an equitable bill of review must effectuate the relief sought completely within the particular proceedings. Hermann Hospital Estate v. Nachant, Tex.Com.App., 55 S.W.2d 505. The statute, Art. 4328, R.S., under which this suit is maintained manifestly involves the same procedure. Kelsey v. Trisler, 32 Tex.Civ.App. 177, 74 S.W. 64. Except in cases that may be prescribed by law, our courts do not try cases by piecemeal."

With the holding that the rules applicable to an equitable bill of review govern in a proceeding of this nature we do not concur. In Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932, 934,...