Schoenhals v. Schoenhals

• Decision Date: 04 March 1963
• Docket Number: No. 7233,7233
• Parties: Harrison Eugene SCHOENHALS et al., Appellants, v. Rosa A. SCHOENHALS, Appellee.
• Court: Texas Court of Appeals

Page 594

366 S.W.2d 594

Harrison Eugene SCHOENHALS et al., Appellants, v. Rosa A. SCHOENHALS, Appellee.

No. 7233.

Court of Civil Appeals of Texas, Amarillo.

March 4, 1963.

Rehearing Denied April 1, 1963.

Crow & Crow, Canadian, for appellants.

Roy Sansing, Higgins, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.

DENTON, Chief Justice.

This suit involves a contest of the will of Harry F. Schoenhals, deceased. Mr. Schoenhals died on May 15, 1959, and his will was probated on June 1, 1959. The suit which originated this controversy was filed on May 17, 1961, in the County Court of Lipscomb County by Carlos Garner Schoenhals, a son of the deceased. That suit was filed against Harrison Eugene Schoenhals, another son of the deceased and independent executor of the estate. This suit, in the nature of a contest, sought to delete the following phrase from the will as probated: 'Subject to any indebtedness existing against the land at the time of my death'. This clause referred to one and one-fourths section of land devised ot the contestant and his brother, Harrison Eugene Schoenhals, share and share alike. The contest was based on the allegation this disputed clause was inserted in the will after its execution by the testator. On May 29, 1961, the County Judge entered a judgment cancelling and deleting the clause complained of.

On June 28, 1961, appellee filed an instrument designated 'Bill of Review' Service was had on both the executor and Carlos Garner Schoenhals. This Bill of Review was considered by the County Judge on September 22, 1961, and on that date he entered judgment setting aside the court's judgment of May 29, 1961. It is from the September judgment that the appellants excepted and gave notice of appeal to the District Court of Lipscomb County. Based on the jury verdict, the District Court entered judgment sustaining the County Court's judgment of September 22, 1961. Appellants have duly perfected their appeal from that judgment.

By counterpoint, appellee makes the contention the District Court erred in failing to dismiss appellants' appeal from the County Court for want of jurisdiction. Appellants timely entered into an appeal bond which was set by the court, approved and filed on October 2, 1961. Although the clerk's records themselves do not reflect when the transcript was actually filed with the clerk, the District, the Court's civil docket shows the date of filing was December 29, 1961. Rule 334, Texas Rules of Civil Procedure, requires the county clerk to immediately transmit the original papers of the probate proceeding to the clerk of the District Court. The rule then requires the district clerk to immediately file and docket the cause. This purported transaction took place prior to September 1, 1962, when Rules 332, 333 and 334, T.R.C.P., were rewritten and rearranged. We are, therefore, governed by the above-named rules as they were before the effective date of their change. It is undisputed appellants complied with Rule 332 when they entered into an appeal bond which was approved and filed with the county clerk. Upon the appeal bond being filed, rule 334 required the county clerk to take the action mentioned above. It is then the duty of the district clerk to perform his duties as stated. However, in the instant case, the clerk of the County Court and of the District Court of Lipscomb County are one and the same person, using the same office facilities. Under these circumstances, and where the appeal bond was timely filed and approved, and where the complete record was filed and in the official possession of the clerk of both courts, we cannot say the appeal from the County Court to the District Court was not property perfected under the applicable rules then in effect.

Although the evidence in this case was relatively short and to a great extent undisputed, the record is made confusing and complex by the various motions and countermotions filed by both parties in the County Court and District Court. There was an apparent difference of opinion by counsel throughout the trial as to what basic issues were involved. As we understand it, the primary question to be determined is whether or not there is any evidence or sufficient evidence to support the jury finding that the interlineation was made before the will was executed. In order to decide this question, we must pass on the validity of appellee's Bill of Review; the admissibility of testimony of Mrs. Clara Sansing and Victor Schoenhals; and whether or not the trial court erred in refusing to dismiss counsel for appellee and strike all pleadings filed by said counsel.

In addition to overruling both parties' motion for summary judgment, the trial court overruled appellee's motion to dismiss appellants' appeal to the District Court; overruled appellants' motion to dismiss counsel for appellee, and the motion to strike appellee's pleadings. If these rulings of the trial court were correct, we then come to the basic question of whether or not the jury verdict is supported by the evidence. The crux of the case is whether or not the will was executed in the form in which it was originally probated on June 1, 1959. Both the suit to contest the will filed May 17, 1961, and appellee's Bill of Review, which attacked the judgment sustaining the contest, go to this basic question. The County Court's judgment of September 22, 1961, set aside the court's prior judgment which deleted the clause in controversy. The September judgment is the basis of the appeal to the District Court, and it is fundamental the latter court shall try the case de novo.

Appellants' Bill of Review was not equitable in nature but statutory, and is provided for by Section 31 of the Probate Code, V.A.T.S. In our opinion it meets the requirements of that article. A statutory bill of review is not subject to the limitations or requirements of an equitable review. Janson v. Jacobs, 44 Tex. 573, Supreme Court. The primary basis of the Bill of Review was that appellee, Rosa A. Schoenhals, had a substantial interest in the estate of the deceased, and that she was not made a party to the contest filed by Carlos Garner Schoenhals. As residuary devisee, Rosa A. Schoenhals' estate would be vitally affected by the deletion of the controversial clause. The extent of her estate depended on whether or not appellant and his brother took the one and one-fourths sections of land subject to the $7,000 to $8,000 indebtedness, which the record shows existed at the time of the testator's death. As a party with a real and present interest in the judgment under question, appellee was a necessary party to that suit. Hunt v. Ramsey, 162 Tex. 133, 345 S.W.2d 260. Although the petition filed on May 17, 1961, was designated 'Contest of Carlos Garner Schoenhals' it was, in effect, a bill of review and as such was a direct attack on the judgment admitting the will to probate. Therefore, all persons who might be in any way affected by its result must be before the court. Hannon v. Henson, (Com.App.), 15 S.W.2d 579. Pure Oil Company v. Reece, 124 Tex. 476, 78 S.W.2d 932, (Opinion Adopted). We are of the opinion and so hold appellee's Bill of Review was properly allowed.

Subsequent to perfecting their appeal to the District Court, appellants filed a motion to dismiss counsel for appellee and to strike all pleadings filed by them. This motion was based on allegations that counsel, who had written and witnessed the will in controversy, had filed the will for probate, and subsequently represented appellee in the proceedings outlined above.

In the case at bar the District Court acted as a court of appellate probate jurisdiction and, as such, the District Court can exercise only appellate jurisdiction. Cogley v. Welch, (Com.App.), 34 S.W.2d 849. First State Bank of Bellevue v. Gaines, 121 Tex. 559, 50 S.W.2d 774. It is equally well settled that where an appeal is made from the county court to the district court involving proceedings in a bill of review, the jurisdiction of the district court, being appellate in nature, the issues are limited in the latter court to the...