Staehling v. Schneider, 16764

Citation545 S.W.2d 273
Decision Date23 December 1976
Docket NumberNo. 16764,16764
PartiesDorothy R. STAEHLING, Appellant, v. Lillian Hazel SCHNEIDER, Appellee. (1st Dist.)
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Percy Foreman, Levert J. Able, Tom F. Coleman, Jr., Houston, for appellant.

Childress, Port & Crady, Charles C. Crady, III, Gail Borden Tennant, Jr., Houston, for appellee.

EVANS, Justice.

The primary question in this case is whether the repeal of Section 30 of the Texas Probate Code, which authorized writ of certiorari review in the district court of probate proceedings, resulted in a loss of the district court's jurisdiction over a writ of certiorari which had already been perfected and which was pending in the district court at the time the statute was repealed.

The appeal by writ of certiorari was perfected in the district court in August 1973. Section 30 of the Texas Probate Code was repealed effective June 21, 1975. On March 30, 1976, appellee filed a plea to the jurisdiction of the district court which it sustained. This appeal is from the district court's order dismissing the cause for want of jurisdiction.

In Gulf Oil Corporation v. Outlaw, 136 Tex. 281, 150 S.W.2d 777 (1941), notice of appeal from a final judgment entered July 14, 1938, had been given but had not been perfected. A writ of error was subsequently perfected in the court of civil appeals on March 17, 1939. Subsequently, a repealing statute (Article 2249a, Vernon's Ann.Civ.St., effective January 1, 1940) provided that a party who had participated in person or through his attorney in the trial of the case was no longer entitled to review by the court of civil appeals through the means of writ of error. The court of civil appeals thereafter rendered its judgment in the case on January 18, 1940, and on rehearing a motion was made to dismiss the appeal for want of jurisdiction. The court of civil appeals denied the motion to dismiss, holding that the right of appeal was constitutionally guaranteed and could not be denied by the legislature. (137 S.W.2d 787, Tex.Civ.App.--El Paso, 1940). The Texas Commission of Appeals reversed the decision of the court of civil appeals on other grounds, but held that the jurisdictional ruling of the appellate court was correct. On this point Commissioner German stated:

'After mature consideration it is announced as the conclusion of the Court that the Act mentioned was not intended to apply to causes where appeal by writ of error was fully perfected prior to the effective date of same, to wit, January 2, 1940. In this instance appeal had been perfected in the Court of Civil Appeals before the Act was ever passed by the legislature. While not approving the reasoning of the Court of Civil Appeals upon this question, its judgment in this respect is sustained.' 136 Tex. 281, 150 S.W.2d at 778.

In Atkins v. Rayburn, 506 S.W.2d 208 (Tex.1974), a mandamus action was brought to compel the district court to dismiss five probate court appeals on the ground that the amendment of Section 8 of Article V of the Texas Constitution, and Section 5 of the Probate Code effective November 6, 1973, lodged jurisdiction of appeals from probate proceedings in the courts of civil appeals and thus deprived the district court of jurisdiction. The Texas Supreme Court, citing Gulf Oil Corp. v. Outlaw, supra, held that since all of the appeals had been perfected prior to the effective date of the amendment, the jurisdiction of the district court was not affected by the amendment .

In a recent case involving a situation practically identical with that before this court, the Corpus Christi Court of Civil Appeals held that the repeal of Section 30 of the Texas Probate Code did not deprive the district court of jurisdiction over a perfected appeal by writ of certiorari. Cluck v. Ballenger, 543 S.W.2d 159 (1 Texas Court Reports 992, October 21, 1976, no writ). As in the case before this court, an appeal by writ of certiorari had been perfected to the district court prior to the effective date of the repeal of Section 30, Texas Probate Code. The district court denied the plea to the jurisdiction and proceeded to trial. Affirming the district court's judgment, the court of civil appeals through Justice Bissett stated:

'This case is controlled by the rule of Atkins v. Rayburn, 506 S.W .2d 208 (Tex.1974) . . . The appeal by certiorari proceedings had been perfected by the appellees prior to the effective date of the repeal of Tex.Prob.Code Ann., § 30; therefore, the certiorari proceedings were not affected by the...

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2 cases
  • Estate of Knudsen, Matter of, 3107
    • United States
    • United States State Supreme Court of North Dakota
    • January 26, 1981
    ...the district court had no power other than to remand the case to the Burleigh County Court. We do not agree. In Staehling v. Schneider, 545 S.W.2d 273, 274 (Tex.Civ.App.1976), a case which is in many respects similar to this case, the court "Generally, where a right of action or a remedy is......
  • Nix v. State, 1544
    • United States
    • Court of Appeals of Texas
    • September 17, 1981
    ...over the appeal unless the repealing statute indicates a contrary intent. Atkins v. Rayburn, 506 S.W.2d 208 (Tex.1974); Staehling v. Schneider, 545 S.W.2d 273 (Tex.Civ.App. Houston (1st Dist.) 1976, no writ). In the instant case, the Court of Criminal had jurisdiction over appeals in bond f......

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