Rodeheaver v. Alridge
| Decision Date | 27 March 1980 |
| Docket Number | No. 17640,17640 |
| Parties | County Clerk Anita RODEHEAVER and Constable C. R. Davis, Appellants, v. Annie ALRIDGE, Administratrix of the Estate of Juanita McGarrity, Deceased, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Joe Resweber and Billy E. Lee, Houston, for appellants.
Philip M. Shafer, Houston, for appellee.
Before EVANS, PEDEN and WARREN, JJ.
This action for declaratory judgment was initiated by the County Clerk of Harris County and the Constable of Precinct No. 4 against Annie Alridge, the administratrix of the estate of Juanita McGarrity, deceased, to judicially determine whether the administratrix was exempt from payment of certain fees for the filing, processing and issuance of citation in a suit brought in her fiduciary capacity against a third party defendant.
Prior to the institution of this action for declaratory judgment, Annie Alridge, as administratrix of the estate of Juanita McGarrity, deceased, initiated a suit in probate court against one Robert Parker to recover possession of certain property allegedly belonging to the decedent's estate. At that time the administration proceedings were pending as cause no. 154,805 in the Probate Court, and the suit filed by the administratrix against Parker was docketed by the county clerk under the same cause number as the pending administration.
Since the enactment of a statute by the Texas legislature in 1967, county clerks and clerks of county courts have been authorized and required to collect a fee in the amount of $25.00 for each adverse action or contest filed in a cause pending in probate court, such fees "to be due and payable and to be paid by the party or parties starting or initiating" such adverse action or contest. Article 3930(b) Tex.Rev.Civ.Stat.Ann. Similarly, sheriffs and constables are entitled to receive a fee of $10.00 for service of citation in all courts other than small claims or justice courts. Article 3933a Tex.Rev.Civ.Stat.Ann.
In the case at bar the administratrix refused to pay both such fees contending that such payments, in effect, constituted "security for costs" from which she was exempt from payment under the provisions of Article 2072 Tex.Rev.Civ.Stat.Ann. and Section 12, Texas Probate Code.
The county clerk did issue a citation for service upon the defendant, Robert Parker, but the constable refused to serve the citation upon such defendant unless the administratrix first paid the required fee for such service. The county clerk and constable thereupon brought this action for declaratory judgment, which was docketed under the same cause number as the pending administration proceedings. Both sides then filed motions for summary judgment, and the trial court denied the motion of the county clerk and the constable, and granted the motion of the administratrix, determining, as a matter of law, that the administratrix was exempt from payment of the specified fee.
Before determining the merits of this appeal, it is necessary that this court first determine whether it has jurisdiction.
The amount in controversy in the declaratory judgment action does not exceed the sum of $100.00, exclusive of interest and costs, and the amount in dispute is therefore less than the jurisdictional minimum specified by Article 1819 and Article 2249 Tex.Rev.Civ.Stat.Ann. However, this court's jurisdiction extends to appeals from "all final orders" of any court exercising original probate jurisdiction. Section 5, Texas Probate Code; Section 8, Article 5, Texas Constitution, and this court, therefore, has jurisdiction over the appeal, even though the amount in controversy does not exceed the amount specified by statutes.
The next question is whether the order in question is final and appealable, or whether it is merely interlocutory.
An appeal is authorized from an order entered in a probate proceeding which finally disposes of and is conclusive of the issue or controverted question for which that particular action was brought. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213 (1960); Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385 (1945). The declaratory judgment action in the case at bar is a separate and independent suit, even though it is docketed under the same number as the administration proceedings. Since the trial court's order finally disposed of all issues and parties involved in the declaratory judgment action, it is "final" for purposes of appeal, even though further action is appropriate in the administration proceedings. Cherry v. Reed, 512 S.W.2d 705 (Tex.Civ.App.-Houston (1st Dist.) 1974, writ ref'd n.r.e.).
On the merits of the case, the county clerk...
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