Sevier v. Teal

• Decision Date: 01 January 1856
• Citation: 16 Tex. 371
• Parties: E. G. SEVIER v. PETER TEAL.
• Court: Texas Supreme Court

16 Tex. 371

E. G. SEVIER

v.PETER TEAL.

Supreme Court of Texas.

1856.

The proceedings of the probate court not done at the county seat are not void on that account, if, by reason of an incursion of the public enemy, it was impossible to hold court at the county seat.

It would seem that where the obtaining of letters of administration is part of a fraudulent scheme to divert the property of an estate from its proper destination, suit may be commenced by the real parties in interest in the district court to arrest the administration and recover the property.

Where the suit went off on a plea in abatement in the court below, and on appeal both parties asked an opinion on the merits, there being no error, the court said it would not be proper, if competent to comply with the request.

Appeal from Victoria. Tried before J. J. Holt, Esq., appointed by the parties.

A. S. Cunningham, for appellant.

Phillips & Phillips, for appellee.

HEMPHILL, CH. J.

The question in this case is, Was there error in sustaining the plea in abatement?

This depends on the force of the letters of administration to the defendant Teal; for if valid, there was no error in sustaining the plea, and declaring the letters of administration to the plaintiff Sevier, being subsequent in point of time, to be void.

The first and principal objection to Teal's letters is, that although purporting to be issued in Refugio county, and by the probate court thereof, yet they were not in fact issued at the court house, at the Mission of Refugio, but at Carlos' Ranch; or, perhaps, even in another county, viz.: the county of Victoria.

This objection does not appear from the face of the probate proceedings, but from the deposition of the chief justice, by whom the letters were granted, it is clear that they were not issued at the Mission; and it was satisfactorily proven that the grant was not in the county of Victoria, but at the rancho of Don Carlos. It is insisted for the plaintiff that the court house of the county was at the Mission of Refugio, and that a grant of administration elsewhere, though within the county, was void.

It will not admit of question, that by law courts of probate were required to be holden at the court houses of the respective counties. This appears from the various provisions on the subject of opening and holding courts, and especially the 25th section of the act organizing inferior courts. (Laws of Republic, vol. 1, p. 153. See also Law of Consultation, p. 136, sec. 4; and Laws of the Republic, vol. 2, p. 111, sec. 2.) But it is contended that the Mission was never established by law as the county seat of Refugio; and it does not appear that there is any express provision of law fixing the county seat of that county. But it is, on the other hand, insisted that the Mission became the county seat from the fact that it was established as the principal town of Power & Hewitson's colony in 1834, and that the ayuntamiento held their sessions there, up to the war of the revolution. These are very strong facts in support of the position that the Mission was the legal seat of justice of the county; but are they conclusive? If, for instance, the courts had never been held at the Mission, but at some point on Aransas Bay, or at Carlos' Ranch, would their acts and proceedings have been void, on the ground that the sessions were not at the place required by law? This would be a harsh construction, in the absence of a specific provision fixing the Mission as the place for holding the courts. I have no doubt that the Mission was properly the seat of justice of the county. But this does not appear to have been always so understood by the officers of the county. By the act of December 21, 1837, p. 111, clerks of the county and district courts were required to keep the papers pertaining to their offices at the county seats, and, on failure, were subject to the forfeiture of twenty dollars for each day of failure. From the evidence of Mr. Neal, who was chief justice at the grant of letters to Teal, it appears that his predecessor held his office at Carlos' Ranch; that when Neal was appointed chief justice, he was residing at the city of Aransas; that the offices of the district clerk, of the sheriff and of the surveyor, were then kept at that place; that Neal, concluding it would be more convenient to the citizens of the county that the courts should be holden at the Mission of Refugio, moved his office up there, and the other officers of the county followed; that he remained at Refugio until the spring of 1842, when he was forced, by the invasion of the Mexicans, to remove the archives to Carlos' Ranch; that he had never seen any law designating the county seat of Refugio county. From this evidence it appears that the offices were kept for some time at Aransas before removal to Refugio. Could it be seriously urged that, under the circumstances, acts done by these...