Pruett v. Hamilton

• Decision Date: 25 November 1953
• Docket Number: No. 10168,10168
• Citation: 263 S.W.2d 193
• Parties: PRUETT v. HAMILTON.
• Court: Texas Court of Appeals

Page 193

263 S.W.2d 193

PRUETT v. HAMILTON.

No. 10168.

Court of Civil Appeals of Texas, Austin.

Nov. 25, 1953.

Rehearing Denied Dec. 16, 1953.

Victor Gleckler, R. C. Wilson, Austin, for appellant.

Carl C. Hardin, Jr., Taylor, Chandler & Taylor, Austin, for appellee.

HUGHES, Justice.

This appeal is from a judgment of the District Court of Travis County rendered in a guardianship proceeding originating in and appealed from the County (Probate) Court of Travis County.

Appellant is Mary Pruett and appellee is Roxie Pruett Hamilton.

Other aspects of this litigation are reflected by the opinions of this Court in Pruett v. Hamilton, Tex.Civ.App., 259 S.W.2d 916 and Mary Pruett v. Hamilton, Tex.Civ.App., 258 S.W.2d 198 (writ of error ref., n. r. e).

On June 14, 1952, appellee and others filed applications in the County Court for her appointment as guardian of the persons and estates of Martin G. Pruett, age ninety and Mary Pruett, age 87, the father and mother of appellee.

On June 26, 1952, this application was amended, the material amendments being that all allegations regarding Mary Pruett were omitted, that 'Martin G. Pruett is now of unsound mind' was alleged for the first time and the court was not requested to appoint any particular person as guardian.

On June 26, 1952, notice, as required by law, was given that a hearing would be had on July 14, 1952, on the application for appointment of a guardian for the person and estate of Martin G. Pruett.

On July 7, 1952, Mary Pruett, as next friend of Martin G. Pruett, ¹ filed a contest in such proceeding and denied that Martin G. Pruett was a person of unsound mind and prayed that the application for guardianship be denied.

On July 31, 1952, a trial amendment was filed by applicants in which the court was asked to appoint appellee as guardian.

After hearing and on September 5, 1952, the County Court entered an order finding Martin G. Pruett to be a person of unsound mind and appointing appellee as the guardian of his person and estate upon her giving bond in the sum of $1,000 and giving oath as required by law, and appointing appraisers of the estate.

On September 9, 1952 appellant and Martin G. Pruett appealed from the entire order of September 5th and Mary Pruett executed a bond sufficient to supersede such order under the provisions of Rule 339, Texas Rules of Civil Procedure, and Writ of Supersedeas issued on October 17, 1952.

When the appeal reached the District Court appellee and other applicants filed an amended application which, among the other allegations, referred to the action of the County Court previously taken and prayed that 'Martin G. Pruett again be adjudged a person of unsound mind and that, upon the determination of that issue in applicants' favor, that the determination of such fact be certified to the County Court of Travis County Texas, and for such other and further relief in law or equity, general or special to which applicants may be entitled.'

To this pleading appellant Mary Pruett filed a plea in abatement for herself and as next friend for Martin G. Pruett and numerous exceptions were filed on behalf of Martin G. Pruett and wife Mary Pruett and an answer was filed by Mary Pruett, individually and as next friend for her husband, Martin G. Pruett. This answer, among its many allegations, alleged that none of the applicants, including appellee, was a suitable or proper person to be appointed guardian, but that Mrs. Opal Calhoun, a granddaughter of Martin G. Pruett, was suitable and proper and should be appointed in the event a guardianship was ordered.

Applicants, including appellee, filed five exceptions to the above answer, all of which were sustained. Such exceptions were as follows:

Applicants, excepted to an allegation of such answer that 'Martin G. Pruett is without a guardian, either of his person, or of his estate' because 'defendants attempt to admit as true what plaintiffs did not allege, to wit, 'That Martin G. Pruett is without a guardian, either of his person or of his estate; also said attempted admission is false and the contrary is a matter of record and not in issue in this Court.''

Such answer specially denied that any person was guardian of the person or estate of Martin G. Pruett. The following exception was made to such denial:

'* * * for the reason that said matter is a matter of record and is untrue; and also that it is irrelevant and immaterial to the issues to be tried before the jury; that is, 'That any person is the guardian of his person and estate.''

Such answer denied that Martin G. Pruett was possessed of an estate of approximately $5,000. The following exception was made to such denial:

'* * * for the reason that whether Martin G. Pruett is possessed of an estate of approximately $5,000.00 is immaterial and irrelevant to the issues to be tried in this cause and was not a matter in controversy and thus appealed from below.'

Such answer denied that Roxie Pruett Hamilton was a suitable or proper person to act as guardian. The following exceptions were made to such denial:

'(1) That the issue of suitability was not the subject of the matter in controversy in the County Court.

'(2) That no other person has ever applied for appointment as guardian.

'(3) That no other person has ever intervened or adopted the pleadings of any person who contested the proceedings in the County Court or in this Court.

'(4) That no other person has become a party to this suit to entitle them to apply for appointment as guardian.

'(5) That no other person has ever shown to have an interest to entitle such person to be appointed guardian.

'(6) That contestants have heretofore acquiesced in the guardian's qualifications and have waived any alleged right to contest same.

'(7) That said allegation fails to allege in any manner wherein the guardian appointed is not suitable, qualified, or a proper person so as to put applicants on notice of any claimed disqualification.'

An exception was also made to that part of such answer which alleged that appellee was not a suitable person to act as guardian but that Mrs. Calhoun was suitable for such purpose, the exception made being:

'* * * that no one other than Roxie Pruett Hamilton has heretofore applied for appointment as guardian in the County Court or in this Court; that there was no issue or controversy in the County Court as to her qualifications or suitability to act as guardian; that no contestant has applied for appointment as guardian; that no person or persons interested in the estate of Martin G. Pruett has or have intervened or applied for appointment as guardian, or has or have in any manner adopted the pleadings in the County Court or in the District Court and become a party and applied for appointment as guardian or contested the qualifications or suitability of Roxie Pruett Hamilton, who was appointed below.'

Of the thirteen special exceptions made by appellants twelve were overruled. Of these twelve some were directed to allegations in which reference was made to the judgment or order of the County Court, it being specifically pointed out by such exceptions that in an appeal of this character the District Court is not a reviewing court but must conduct a trial de novo.

The jury which heard this case in the District Court found, in answer to special issues, that Martin G. Pruett was of unsound mind on July 31, 1952, and at the time of trial.

Based on this verdict the court rendered judgment 'decreeing that said Martin G. Pruett is a person of unsound mind' and reciting that:

'The said trial was an appeal by contestants from the County Court's judgment and constituted a trial de novo of all matters in controversy in...