Sorsby v. Russ

• Decision Date: 30 January 1941
• Docket Number: No. 11075.,11075.
• Citation: 147 S.W.2d 876
• Parties: SORSBY et al. v. RUSS.
• Court: Texas Court of Appeals

147 S.W.2d 876

SORSBY et al. v. RUSS.

No. 11075.

Court of Civil Appeals of Texas. Galveston.

January 30, 1941.

Rehearing Denied February 20, 1941.

Appeal from District Court, Austin County; M. C. Jeffrey, Judge.

Proceeding between E. D. Sorsby and another and Mrs. Lulie Russ. From so much of the district court's judgment, which was entered in proceedings wherein Mabel Guthrie Russ sought to have reviewed a probate court's order refusing to probate a will, as taxed against Mabel Guthrie Russ and E. D. Sorsby and another, who were sureties of Mabel Guthrie Russ upon a certiorari bond, costs which accrued in the proceedings subsequent to the resignation of Mabel Guthrie Russ as the nominated independent executrix in the will, E. D. Sorsby and another appeal.

Reversed and judgment directed in favor of E. D. Sorsby and another in accordance with opinion.

Wm. H. Betts, of Hempstead, for appellants.

Marvin Sprain, of Bellville, Richard Spinn, of Brenham, and C. D. Duncan and J. Lee Dittert, both of Bellville, for appellee.

GRAVES, Justice.

This appeal by E. D. Sorsby and H. D. Schwarz, who were the sureties of Mabel Guthrie Russ upon a certiorari bond, whereby she sought in the district court of Austin County to have reviewed an order of the probate court of such county refusing to probate the will of Kinch Russ, deceased, is from only so much of the district court's judgment on that appeal (after it had likewise refused the probate of such will) as further taxed the costs of such proceeding against their principal on such bond, Mabel Guthrie Russ, and themselves, as accrued subsequent to her resignation as the nominated independent executrix in that will.

The same court that rendered this appealed-from judgment on January 9 of 1940, had theretofore, on September 26 of 1939, accepted the resignation of Mabel Guthrie Russ as such executrix and decreed that "The said Mabel Guthrie Russ is hereby dismissed and discharged as and from being a party to the above entitled and numbered cause."

In view of such dismissal of their principal at that time as a party to the proceedings, appellants contend that this part of the court's judgment notwithstanding, providing that all costs therein adjudged against Mabel Guthrie Russ be "likewise adjudged against H. D. Schwarz and E. D. Sorsby, as Sureties, * * * but as to said Sureties, there shall be no recovery of costs beyond the penal sum of said Bond, and they are herein adjudged to pay whatever costs that may have incurred incident to such Bond in said Cause No. 7315 and as consolidated with Cause No. 7299, after its consolidation", was improper and beyond the court's power; they present in this court these among other assignments of error against the court's action:

"No. 1. After the making and filing by Mabel Guthrie Russ of her resignation of the nomination as independent Executrix, she was in no wise a party to the consolidated Cause No. 7299-7315 in the District Court of Austin County, Texas.

"No. 2. After the judgment and decree of the District Court, made and entered on September 26, 1939, dismissing and discharging Mabel Guthrie Russ `from being a party to' Consolidated Cause No. 7299-7315, the District Court of Austin County, Texas, was without jurisdiction to enter any affirmative judgment against her, individually and/or in a representative capacity.

"No. 3. Mabel Guthrie Russ having been nominated Independent Executrix of and in the instrument dated October 31, 1938, and offered for probate as the Last Will and Testament of Kinch Russ, deceased, it was her legal duty to offer the same for probate, and in the absence of a finding by the court that she was guilty of fraud or undue influence in the procurement of such Will, all costs incurred in such proceeding should be taxed against the Estate of Kinch Russ, deceased.

"No. 4. By reason of the judgment and decree of the District Court of Austin County, Texas, dismissing and discharging Mabel Guthrie Russ from and as a party to Consolidated cause No. 7299-7315, rendered September 26, 1939, the said Mabel Guthrie Russ was dismissed from said Cause, with her costs.

"No. 5. By reason of the resignation and disclaimer filed by Mabel Guthrie Russ on September 26, 1939, and the judgment of the Court accepting the same and dismissing her as a party to said Consolidated Cause No. 7299-7315, the said Mabel Guthrie Russ was liable for no costs in said cause thereafter incurred.

"No. 6. The liability of Appellants for costs are co-extensive with the liability of the Principal, Mabel G. Russ; subject, however, to the limitation of the amount of the bond.

"No. 7. There being no judgment rendered by the District Court of Austin County, Texas, at the July Term, 1939, of said Court and at which the said Mabel G. Russ was discharged and dismissed as a party to said Cause No. 7299-7315, said Court was without jurisdiction or authority to enter a judgment against Mabel G. Russ for costs at the January Term, 1940."

These positions are supported, seriatim, under the same numbers, by citation of these authorities:

(1) Article 2182, R.C.S.; 15 Tex.Jur., 265, Section 24; 41 Tex.Jur., 574, Section 94; 18 Corpus Juris, 1170; 9 R.C.L., 199, Section 13.

(2) 18 C.J., 1171, Section 63; 41 Tex. Jur., 594, Section 94; 15 Tex.Jur. 265, Section 24; Watts v. Overstreet, 78 Tex. 571, 14 S.W. 704; McKibban v. Scott, 131 Tex. 182, 114 S.W.2d 213, 115 A.L.R. 1421; Sharp v. Hall, Tex.Civ.App., 49 S.W.2d 523, 525; Rankin v. Rankin, Tex.Civ.App., 134 S.W. 392; Bridges v. Continental Southland Savings & Loan Association, Tex.Civ.App., 86 S.W.2d 659, 661, error refused; Keyser v. Meuseback, 77 Tex. 64, 13 S.W. 967; Davis v. Wichita State Bank & Trust Co., Tex.Civ.App., 286 S.W. 584, 589.

(4) 41 Tex.Jur. 574, Section 94; 41 Tex.Jur., 578, Section 96; 14 Amer.Jur., 35, Section 38.

(5) 41 Tex.Jur., 574, Section 94; 11 Tex.Jur., 246, Section 12; Capt et al. v. Stubbs et al., 68 Tex. 222, 48 S.W. 467; Vogt v. Bexar County, 91 Tex. 285, 286 43 S.W. 14; Barnes v. Lightfoot, 26 Tex. Civ.App. 113, 62 S.W. 564; Askey v. Williams, 74 Tex. 294, 11 S.W. 1101, 5 L.R.A. 176.

(6) 11 Tex.Jur., 291, Section 39.

(7) Article 199, Section 22, R.C.S. (as amended), Vernon's Ann.Civ.St. art. 199 subd. 22; 11 Tex.Jur., 306-7, Section 46; Waggoner v. Davis, Tex.Civ.App., 261 S. W. 482, 484; Randall v. Collins, 52 Tex. 435; Hall v. Reese's Heirs, 26 Tex.Civ. App. 395, 64 S.W. 687; Collins v. Hines, Tex.Civ.App., 100 S.W. 359.

It is determined that these contentions, to the extent of holding the appellants...