Stone v. Byars

• Citation: 73 S.W. 1086
• Parties: STONE v. BYARS et al.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 03 April 1903
• Court: Texas Court of Appeals

73 S.W. 1086

STONE v. BYARS et al.^*

Court of Civil Appeals of Texas.

April 3, 1903.

Appeal from District Court, Colorado County; Munford Kennon, Judge.

In the matter of the estate of William Dunovant, deceased. From a judgment of the district court of Colorado county appointing H. R. Byars and Joseph A. Robertson administrators of said estate, E. L. Stone, a creditor of the estate, appeals. Affirmed.

Whit Boyd, for appellant. Maco & Minor, Stewart, Adkins & Green, McCormick & Brown, and Grobe & Ayars, for appellees.

GARRETT, C. J.

This is an appeal by E. L. Stone, a creditor of the estate of Wm. Dunovant, deceased, from a judgment of the district court of Colorado county appointing the appellees, H. R. Byars and Joseph A. Robertson, administrators of said estate. Wm. Dunovant died intestate August 11, 1902, in Harris county, Tex. His principal estate was situated in Colorado county. Application was made by the appellee Joseph A. Robertson for letters of administration upon the estate of said William Dunovant in the county court of Harris county October 23, 1902. Paul T. Gordon and J. A. Harbert and A. M. Waugh, administrator, etc., creditors of said estate, contested said application on the ground that the said William Dunovant was not a resident of Harris county at the time of his death, but that he had his domicile in, and was a resident of, Colorado county, where his principal estate was situated. Upon a hearing of the application and contest on January 7, 1903, the county judge of Harris county granted the application of the said Robertson, and appointed him as administrator of said estate. Both Gordon and the said Harbert and Waugh excepted, and gave notice of appeal to the district court of Harris county. Two appeals from said order were perfected and prosecuted, and were filed in the district court of the Eleventh Judicial District, and docketed as follows: "No. 32,914. Estate of William Dunovant, Deceased. Appeal of Paul T. Gordon." "No. 32,916. Estate of William Dunovant, Deceased. Appeal of J. A. Harbert and A. M. Waugh, Adm'r." On December 30, 1902, the appellee H. R. Byars filed an application in the county court of Colorado county for letters of administration upon said estate of William Dunovant, deceased, and his application was contested by the appellee Joseph A. Robertson on the ground that William Dunovant resided and had his domicile in the county of Harris, and that the contestant had been appointed by the county judge of Harris county temporary administrator of said estate, and that he had theretofore filed an application in the county court of said county for appointment as permanent administrator. Upon the hearing of said application the county court of Colorado county appointed the appellee Byars administrator of said estate, to which the appellee Robertson excepted, and gave notice of appeal to the district court of Colorado county. The appeal was perfected, and the cause was filed in said district court, and was docketed as No. 7,023. The said Joseph A. Robertson and the said H. R. Byars, the appellees here, being the parties to the causes of contest of application for administration pending in the district courts of Colorado and Harris counties, entered into a written agreement, which was filed in the causes Nos. 32,914 and 32,916 pending in the district court of Harris county for the Eleventh Judicial District, to change the venue of said causes to the district court of Colorado county, and moved the court so to order, and in accordance with said agreement and motion the said district court of Harris county, on February 11, 1903, made an order in each of said causes changing the venue thereof to the district court of Colorado county. The papers in said causes and transcripts of the orders therein were duly transmitted to the clerk of the district court of Colorado county, and were filed in said court February 16, 1903, and entered upon the docket thereof the said cause No. 32,916 as No. 7,011 and the said cause No. 32,914 as No. 7,012. The three causes then pending on the docket of the district court of Colorado county in the matters of the applications of H. R. Byars and Joseph A. Robertson for letters of administration upon the estate of William Dunovant, deceased, and the contest thereof, numbered 7,011, 7,012, and 7,023 on the docket of said court, were, on motion of the parties, consolidated by order of the court, and proceeded with as No. 7,011 on the docket. The appellant, E. L. Stone, intervened in the consolidated cause, and showed that he was a creditor of said estate, and excepted to the jurisdiction of the district court of Colorado county of the said causes transferred from Harris county, and asked that they be remanded to the district court of the Fifty-Fifth Judicial District of that county.

It appeared from the pleadings and exhibits that after the orders changing the venue had been made by the district court of Harris county for the Eleventh District, a motion was made in that court by R. G. Ashe, who had been appointed by the county judge of Harris county as temporary administrator of said estate after removal by him of said Robertson to vacate said orders, and that by reason of his disqualification on account of relationship to the said Ashe the judge of said court made an order February 24, 1903, transferring the causes to the district court of Harris county for the Fifty-Fifth Judicial District, and that on February 26, 1903, the said district court for the Fifty-Fifth District made an order by which it undertook to vacate the former orders of the district court for the Eleventh Judicial District changing the venue in said causes, and ordered the clerk of the district court of Colorado county to return the papers thereof to the said district court of Harris county for the Fifty-Fifth Judicial District. This order was not obeyed, the judge of the district court of Colorado county having directed the clerk of...