Scanlan v. State, 9748.

Decision Date03 November 1948
Docket NumberNo. 9748.,9748.
Citation215 S.W.2d 203
PartiesSCANLAN et al. v. STATE.
CourtTexas Court of Appeals

Appeal from 126 Judicial District Court, Travis County; Roy C. Archer, Judge.

Suit to recover inheritance taxes by the State against Lillian Scanlan and others. From an interlocutory order overruling pleas of privilege to change the venue, the defendants appeal.

Order affirmed.

Walter F. Brown, of Houston, for appellants.

Price Daniel, Atty. Gen. of Texas, and Marietta Creel and W. V. Geppert, Asst. Attys. Gen., for appellee.

McCLENDON, Chief Justice.

Appeal from an interlocutory order overruling pleas of privilege seeking to change the venue from Travis to Fort Bend County, where defendants resided.

The suit was by the State, brought under Arts. 7076 and 7076a, Vernon's Ann.Civ.St., to recover inheritance taxes. The order overruling the plea recited that the trial judge was "of the opinion that the questions herein presented are controlled by the opinion of the court in Magnolia Petroleum Co. v. State, Tex.Civ.App., reported in 190 S.W.2d 581, 583." We are in full accord with this holding. It should be noted that no application for writ of error was filed in that case, our jurisdiction therein being final. However, mandamus to compel certification, on the ground of alleged conflict of holdings in the Magnolia case with those of other decisions of the Supreme Court and Courts of Civil Appeals, was applied for; motion to file which application was overruled by the Supreme Court. Every issue raised in the instant case was expressly decided in the Magnolia case, and refusal by the Supreme Court to entertain the mandamus application in that case constituted an authoritative pronouncement by the Supreme Court that the holdings which controlled the decision in that case were not in conflict with decisions of the other stated courts.

The taxes in issue are upon the inheritance of property by the original defendants, Stella and Lillian Scanlan, from their three sisters who died intestate on April 15, 1918, January 11, 1926, and April 26, 1936, respectively. No administration was had on the estate of any of these three sisters; nor, as to either estate, was any proceeding had to appraise the property and fix the amount of the tax provided for in Arts. 7126-7131, Vernon's Ann.Civ.St.

The contention of appellants is that the case at bar is essentially different from that in the Magnolia case, in that this is an inheritance tax case wherein the prerequisites to ascertainment of the existence of the tax, its amount, if any, its non-payment within the statutory period (Art. 7134) are essential to factors (assertedly venue) embraced in the expression "delinquent State taxes due and owing to the State of Texas," whereas the Magnolia case...

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