Stewart v. Moore

• Decision Date: 09 February 1927
• Docket Number: (No. 739-4691.)
• Citation: 291 S.W. 886
• Parties: STEWART et al. v. MOORE et al.
• Court: Texas Supreme Court

291 S.W. 886

STEWART et al. v. MOORE et al.

(No. 739-4691.)

Commission of Appeals of Texas, Section B.

February 9, 1927.

Error to Court of Civil Appeals of Second Supreme Judicial District.

In the matter of the estate of Alice Stewart Lobban, deceased. Motion by Walter P. Stewart and others to vacate order of appointment of Leon R. Moore as temporary administrator. From a judgment of the county court overruling the motion, movants appealed to the district court, and to review a judgment of the Court of Civil Appeals affirming judgment of district court, movants bring error. Judgments of district court and Court of Civil Appeals reversed, and cause remanded to district court.

T. A. Stephens and I. W. Stephens, both of Fort Worth, for plaintiffs in error.

Hunter, Hunter & Greathouse, of Fort Worth, for defendants in error.

SHORT, J.

There is only one question involved in this case, and this question depends upon the proper construction of articles 2092 and 2093 of the Revised Statutes of 1925. Article 2092 regulates the practice and procedure in civil district courts in counties having two or more district courts with civil practice only, whose terms continue for three months or longer. The act became effective July 1, 1923, and applies to Tarrant county and to the district court from which this appeal has been prosecuted. This act has been held to be constitutional in the case of Pierce Co. v. Watkins, 114 Tex. 153, 263 S. W. 905. Subdivision 13 of article 2092 reads:

"In cases appealed to said district courts from [county courts or other] inferior courts, the appeal, including transcript, shall be filed in the district court within thirty days after the rendition of the judgment or order appealed from, and the appellee shall enter his appearance on the docket or answer to said appeal on or before ten o'clock a. m. of the Monday next after the expiration of 20 days from the date the appeal is filed in the district court."

Article 2092 contains 31 sections or subdivisions. Section 1 relates to the issuance of citations; section 2 relates to the service thereof upon defendants residing in the county where the suit is brought; section 3 relates to the issuance of citations to out-county defendants; section 4 relates to the service of such citations; section 5 requires the day of the week and of the month and the time of day when the defendant is required to appear and answer; section 6 relates to the issuance of citations by publication; section 7 relates to service of such citations; section 8 relates to the legal effect where a citation or service thereof is quashed by motion of the defendant; section 9 relates to the execution of writs of attachment; section 10 relates to the execution of writs of garnishment; section 11 relates to the legal effect of a failure of garnishee to make answer; section 12 relates to the execution of other writs and process; section 14 relates to pleas of privilege; section 15 relates to amended pleadings; section 16 relates to the number of copies to be filed of amended pleadings for the use of adverse parties; section 17 relates to the failure to furnish such copies; section 18 relates to the setting of cases for trial; section 19 relates to the postponement or continuance of cases; section 20 relates to the resetting of cases; section 21 relates to the exchange and transfer of cases and other proceedings from one court to another, as also does section 22; section 23 relates to the disqualification of the judge of the court where a case is filed; section 24 provides that any judge may hear any part of a case or any question in any case, and another judge may complete the hearing and render judgment in the case; section 25 gives authority to any judge to hear dilatory pleas and determine demurrers, etc., without having the case transferred to the court of the judge acting; section 26 relates to the selection of the presiding judge by the judges of said courts; section 27 authorizes the judges to make rules by a majority vote; section 28 relates to motions for new trial; section 29 relates to the time within which motions for new trial shall be filed; section 30 determines when a judgment is final; while section 31 determines the time when appeal bond shall be filed as well as bills of exception and statements of fact.

It will thus be seen that this particular article lays down certain rules of practice and procedure which shall govern and be followed in such district courts, and most of its requirements place upon the parties to the litigation certain duties and obligations. The particular section the construction of which is involved in this proceeding pending in this court is section 13 of article 2092, and also article 2093. Article 2093 reads:

"All inconsistent laws and rules of practice and procedure shall be inoperative in the civil district courts of the class included within this chapter, but shall not be affected by this law in so far as they relate to other district courts. All laws and rules of practice and procedure provided for other district courts shall continue in effect and operate and be observed in the civil district courts of the class covered by this law. In all trials and proceedings not provided for herein, the general rules of practice and procedure provided for in other district courts shall be the rules of practice and procedure in the civil district courts of the class included herein."

Since the defendants in error admit that the statement of the nature and result of this suit given by the plaintiffs in error in their brief filed in the Court of Civil Appeals is substantially correct, we adopt it, it being:

"May 23, 1925, Leon R. Moore was appointed temporary administrator of the estate of Alice Stewart Lobban, deceased, by the county court of Tarrant county, Tex., sitting in matters of probate. The order provided that the appointment shall cease to be of force on the day of the qualification of executor or administrator. July 9, 1925, the heirs of Alice Stewart Lobban, deceased, other than Mrs. Fannie Stewart Moore, filed a motion in said county court to vacate said order of appointment in so far as the same purported to be extended beyond July 7, 1925, the day designated for taking up probate business at said July term of court. July 23, 1925, this motion was overruled by the county court, and said heirs, to wit, Walter P. Stewart and others, excepted to said order and gave notice of appeal to the district court of Tarrant county, whereupon the amount of the appeal bond was fixed at $200.

"July 31, 1925, the appeal bond in said amount was approved and filed by the county clerk of said county; but said clerk failed to transmit said bond and the other original papers in said proceedings, together with a certified copy of the order appealed from to the clerk of the district court of Tarrant county within 30 days after said order was made, and on this account said appeal was dismissed by the district court for want of jurisdiction, and from that judgment this appeal is taken." (Italics ours.)

There is but one assignment of error, which reads:

"The district court erred in sustaining the motion of Leon R. Moore, temporary administrator and appellee, to dismiss the appeal of contestants Walter P. Stewart and others for want of jurisdiction, because the order appealed from in said probate matter was entered by the county court of Tarrant county, sitting in matters of probate, the 23d day of July, 1925, and the appeal bond was filed and approved July 31, 1925, and the jurisdiction thus conferred on the district court was not lost by the failure of the clerk of the county court to transmit the original papers in said proceedings to the clerk of the district court, together with the appeal bond and a certified copy of the order appealed from within 30 days after said appeal was perfected." (Italics ours.)

In support of this assignment, appellants present this proposition:

"When the appeal from the order of the probate court was perfected, the district court acquired jurisdiction, and this jurisdiction was not lost by the failure of the clerk of the probate court to transmit the original papers in said proceedings to the clerk of the district court, together with the appeal bond and a certified copy of the order appealed from, within 30 days from the making of such order, there being no issue of negligence on the part of appellants raised by the motion to dismiss or passed on by the court." (Italics ours.)

Defendants in error present a counterproposition in the following language taken from their brief filed in the Court of Civil Appeals:

"Appellants' 1st proposition above quoted would be all right if it were to be filed in any district court in any county in Texas where the New Practice Act of July 1, 1923, does not apply; therefore, appellees submit in opposition to appellants' above-quoted proposition, the following:

"Since the passage of the New Practice Act there is but one way to invoke the appellate jurisdiction of a district court of Tarrant county, appealed from the county court or any other inferior court of said county, and that way is provided in paragraph 13 of article 2092 of Vernon's Annotated Revised Civil Statutes of Texas 1925, on page 27 of volume 6 of said statute."

And they then quote section 13, which has already been copied in this opinion.

Appellees' second counterproposition is as follows:

"The procedure of appellants' counsel of having the clerk of the county court of probate to carry the transcript and appeal record and file them in the Forty-Eighth district court of Tarrant county had been repealed by the Act of July 1, 1923, known as the "New Practice Act" for district courts of Tarrant county. And the old way of requiring the clerk to file the transcript did not apply to such courts; and the fact that the able counsel of the appellants employed the clerk of the county court to carry the appeal transcript...