Robinson v. Snyder Nat. Bank

• Decision Date: 22 October 1943
• Docket Number: No. 2413.,2413.
• Citation: 175 S.W.2d 482
• Parties: ROBINSON et al. v. SNYDER NAT. BANK et al.
• Court: Texas Court of Appeals

175 S.W.2d 482

ROBINSON et al. v. SNYDER NAT. BANK et al.

No. 2413.

Court of Civil Appeals of Texas. Eastland.

October 22, 1943.

Rehearing Denied December 3, 1943.

Appeal from District Court, Scurry County; A. S. Mauzey, Judge.

Suit by Pearl Robinson and others against the Snyder National Bank and another seeking to cancel a judgment of the probate court, and in the alternative to remove a cloud alleged to be cast on the title to a tract of land. Judgment of dismissal, and plaintiffs appeal.

Reversed and remanded.

E. T. Brooks, of Abilene, for appellants.

H. J. Brice, of Snyder, and Mays & Perkins, of Sweetwater, for appellees.

GRISSOM, Justice.

Pearl Robinson and others filed this suit in the District Court of Scurry County against Snyder National Bank of Snyder, Texas, and Tom Wolf, administrator of the estate of O. P. Wolf, deceased. Plaintiffs sought (1) to cancel a judgment of the probate court of Scurry County approving a claim of said bank against said estate, and (2) (in the alternative) to remove a cloud alleged to have been cast upon their title to a tract of land, claimed by plaintiffs to have been deceased's homestead and to have descended to them, as devisees of O. P. Wolf, free of all claims of his creditors. The court sustained the bank's plea to the jurisdiction of the district court and dismissed the suit. Plaintiffs have appealed.

Plaintiffs alleged that O. P. Wolf died in 1927; that Mary Wolf, his wife, filed an application to probate his will and be appointed administratrix; that she was appointed and qualified; that Mary Wolf, administratrix, filed an inventory and appraisement and list of claims of the estate; that the bank's debt was not listed; that Mary Wolf continued as administratrix until her death in February, 1937; that in 1937 Tom Wolf was appointed administrator de bonis non; that he filed an inventory and appraisement; that he did not list the bank's debt as a debt of the estate; that plaintiffs found no other action of "appraisers" until shortly before this suit was filed; that although diligent search was made, "all the papers" could not be found, and that they found no record of the bank's claim until thirty days before filing this suit, when they found a "purported" claim of the bank on the claim docket of the probate court; that said claim "appeared to have been recently entered". That soon thereafter the "papers were brought back and delivered to the clerk"; that among these papers was a claim against the estate of O. P. Wolf, deceased, which stated that O. P. Wolf was indebted to the bank on two notes dated February 4, 1933, executed by Mary Wolf, as administratrix and individually. That the claim was sworn to and showed to have been presented to Tom Wolf, administrator, on the 15th day of October, 1937, and on that day allowed by him to the extent of the principal of said notes. The order approving the claim was alleged by plaintiffs to be as follows:

"This claim, having been allowed by Tom Wolfe, Administrator de bonis non with will annexed of the estate of O. P. Wolfe, deceased, and duly presented to the clerk and entered upon the claim docket of this court for a period of ten full days, and having been by me examined and found to be correct, is hereby approved this the 26th day of October, 1937, as a fifth class claim.

                                    "H. J. Brice, Judge
                  "County Court of Scurry County, Texas
                "Filed — Date 10-15-37
                Chas. J. Oewis
                County Clerk Scurry County Texas
                by Eda McFarland, Deputy"
                

Plaintiffs further alleged that, although they had previously searched the inventory and appraisement made by Mary Wolf and had investigated the filing of the inventory and appraisement and list of claims by Tom Wolf, they had discovered no claim by the bank until a short time before filing this suit; that if they had known of such claim they would have brought suit "in the District Court" to annul said claim because, when it was allowed by Tom Wolf, administrator, it was not a valid claim, but was barred by the two and four year statutes of limitation. Plaintiffs alleged that the bank's claim was not valid, (a) because it does not purport to be based on an instrument executed by O. P. Wolf, or by his authority; (b) because it shows to have been executed by Mary Wolf, "who had not prior thereto obtained authority from the Probate Court * * * to execute such claim for and on behalf of such estate"; (c) because "no authority has been shown", by the bank, authorizing Mary Wolf to execute the note, prior to the time it was barred by limitation; that if it was ever a debt of O. P. Wolf, that at the time it was "filed and approved and entered in the Probate records" it was barred by the two-year statute of limitation; that the application and claim and the approval thereof show that more than two years had elapsed after the death of O. P. Wolf before the claim was approved and filed with the County Clerk and before the judgment was entered on said claim; that a period of more than 8 years had elapsed after the qualification of Mary Wolf as administratrix; that the claim was, therefore, barred by limitation; "that there exists no fact or facts which would suspend the bar of limitation * * *." Plaintiffs further alleged that the presentation of the claim by the bank to Tom Wolf, administrator, the approval by the administrator and "causing same to be approved" by the county judge "was a fraud upon the estate and the rights of plaintiffs herein, who are devisees under the will of said O. P. Wolf, deceased". Plaintiffs alleged that said fraud "was brought about either by accident, mistake or oversight or with intent on the part of claimant * * * to renew and extend said debt * * * without authority of law and with full knowledge of the fact that there was no valid claim then existing * * * but said claim was at said time barred * * *." Plaintiffs alleged that they and defendant Tom Wolf were interested in the estate and at the death of O. P. Wolf owned an interest in real estate described in the petition. That the filing of the claim in the probate minutes cast a cloud upon their right and title to and interest in said land; that under the terms of the will of O. P. Wolf, deceased, plaintiffs and the defendant Tom Wolf acquired said land as devisees. Plaintiffs alleged further that said claim and the approval thereof by the court were not kept in the county clerk's office, where they were supposed to be kept in order to put persons interested in said estate upon notice of the filing and approval thereof. In the alternative, plaintiffs alleged that in the event the court found the judgment was valid, that the land described was, at the death of O. P. Wolf, his homestead upon which he resided; that the claim of the bank was not a lien thereon; that the property was acquired by the plaintiffs free of all liens and encumbrances; that the property is now the homestead of the plaintiffs; that the claim, its allowance by the administrator, approval by the court and the record thereof in the probate minutes of Scurry County constitute a cloud upon plaintiffs' title and an apparent lien against said homestead.

Plaintiffs prayed (1) for a judgment cancelling the judgment of the probate court and (2) (in the event the District Court found the County Court's judgment was valid), that it be "cancelled", insofar as it purports to be a valid claim against the homestead, and that any cloud cast upon their title to said homestead be removed.

Plaintiffs assert first, that the court erred in sustaining the plea to the jurisdiction because they alleged a cause of action which would, if supported by proof, have authorized the district court to cancel the judgment of the probate court. An original action cannot be maintained in the District Court to cancel a judgment of the probate court approving a claim against an estate unless the judgment is wholly void. Jones v. Wynne, 133 Tex. 436, 446, 129 S.W.2d 279. The action of the probate court approving the claim is a final judgment from which any person interested in the estate had the right to appeal to the district court. Article 3525. It is immaterial that it may appear that the approval was erroneous. The question is, Did the probate court have power to render the judgment? Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66. The contention is definitely answered by the Supreme Court in Dallas Joint Stock Land Bank of Dallas v. Forsyth, 130 Tex. 563, 571, 109 S.W.2d 1046, 1050, 112 S.W.2d 173, as follows: "* * * a contingency could have existed that would have made the claim a valid one, * * *. The claim therefore being one that could have been supported by proof that made it valid, what right has a district court to go back of the judgment and again litigate what is conclusively presumed to have been settled, and which we hold was settled by the orders of the probate court * * *. At most the defense as presented here under this record relates to questions that should be raised either in a direct proceeding provided for in such cases by statute, or in a suit by the ward against his guardian. They are denominated `fraud,' but amount only to a collateral attack on the judgments of a probate court * * *."

It is true that plaintiffs alleged that the probate judgment was procured by fraud. Facts showing fraud by the bank are not alleged. They alleged in substance that the claims and the order approving it and the papers in the case were taken out of the clerk's office; that they did not find any record of the proceeding until shortly before this suit was filed. They do not allege that the bank caused said things to be done, and they nowhere directly allege that there was no judgment approving the claim entered of record until shortly before the trial, or, if so, that such failure to properly and promptly enter the judgment was attributable to the bank. Plaintiffs allege that the claim they found among the papers in the case does not purport to be...