Timmins v. Long

• Citation: 58 Tex. 554
• Decision Date: 16 February 1883
• Docket Number: Case No. 1512.
• Court: Supreme Court of Texas
• Parties: J. R. L. TIMMINS AND WIFE v. BONNER & LONG.

58 Tex. 554

J. R. L. TIMMINS AND WIFE

v.BONNER & LONG.

Case No. 1512.

Supreme Court of Texas.

Feb. 16, 1883.

ERROR from Cherokee. Tried below before the Hon. Peyton Edwards.

The opinion states the case.

M. Priest, for plaintiff in error.

Whitaker & Bonner, for defendant in error.

STAYTON, ASSOCIATE JUSTICE.

Timmins and wife having, by an action which originated in the probate court for Cherokee county, which ultimated in a judgment of this court, established a liability of $1,726.34 against L. H. Reed as the former guardian of the estate of Mrs. Timmins, for assets of her estate which came into the hands of Reed as her guardian, this suit was instituted in the probate court for Cherokee county against Bonner & Long as sureties upon the guardian's bond made by Reed.

Over the objections of the defendants Bonner & Long, a trial was had, which resulted in a judgment against them for the sum found to be due by the guardian by the judgment of this court, for interest thereon, and for the costs of the suit against the guardian Reed. An appeal was prosecuted from that judgment to the district court, where a judgment was rendered against the sureties for $747, with interest thereon, and for costs of the probate court. From that judgment Timmins and wife prosecute a writ of error. Both parties assign errors.

In the probate court the defendants sought to have the cause transferred to the civil docket of the county court for trial, upon the ground that it was not a probate proceeding; this the probate court refused to do. In the district court the same motion was made, and the court made an order thereon as follows: “Then came on to be heard the motion of the defendants filed herein to transfer this cause from the probate to the civil docket, and to proceed with said cause as a civil suit, and not as a probate proceeding, which motion having been heard and considered by the court, it is the opinion of the court that the law upon said motion is with the plaintiffs, and it is considered and adjudged by the court that said motion be and the same is overruled.”

The cross assignments of error present the question as to whether or not the probate court had jurisdiction of this action upon the guardian's bond; and lying as it does at the very foundation of this action, its decision becomes necessary.

It is claimed that arts. 2695 and 2696, R. S., confer power upon the probate court to hear and determine actions upon guardians' bonds. These articles provide that:

“Art. 2695. When a guardian who has been ordered by the court, upon final settlement, to deliver the estate to the ward or other person legally authorized to receive the same, or to pay any amount adjudged by the court to be due by him to the estate of his ward, and fails to obey such order, upon complaint in writing by the ward or other person legally entitled to receive such estate or money, the sureties upon the bond of such guardian shall be cited to appear at a regular term of the court and show cause why judgment should not be entered against them for the value of such estate, or for such money, together with ten per cent. damages on the same, and interest and costs.

Art. 2696. Upon the hearing of the complaint provided for in the preceding article, if no good cause to the contrary be shown, the court shall render and enter judgment in favor of such complainant against the guardian and sureties upon his bond that have been cited, for the full value of the estate which said guardian has failed to deliver, and for the full amount of money which the guardian has been adjudged to be indebted to the estate, and for ten per cent. damages on the same, together with interest and all costs of the proceeding, and execution shall issue to enforce such judgment. It shall not be necessary, before rendering judgment against the guardian under this article, that he shall have been cited.”

These articles are broad enough in their terms to give to the probate court the power claimed for it by the appellants, and it becomes necessary to inquire whether, if such be the intent of the legislature as evidenced by these articles, the same be not in conflict with the provisions of the constitution by which judicial power is conferred upon the respective courts.

The sixteenth section of article V of the constitution confers upon the county courts original jurisdiction of three several and distinct kinds:

1st. “They shall have exclusive original jurisdiction in all civil cases where the matter in controversy shall exceed in value two hundred dollars, and not exceed five hundred dollars exclusive of interest, and concurrent jurisdiction with the district courts when the matter in controversy shall exceed five hundred dollars and not exceed one thousand dollars, exclusive of interest, but shall not have jurisdiction of suits for the recovery of land.”

2d. “The county courts shall have the general jurisdiction of a probate court. They shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and common drunkards, including the settlement, partition and distribution of estates of deceased persons, and to apprentice minors as provided by law.”

3d. “The county court shall have original jurisdiction of all misdemeanors of which original jurisdiction is not given to the justice's court, as the same are now or may be hereafter prescribed by law, and when the fine to be imposed shall exceed two hundred dollars.”

The constitution, sec. 8, art. V, among other things, provides that “The district court shall have original jurisdiction … of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to five hundred dollars, exclusive of interest. … The district courts shall have appellate jurisdiction and general control in probate matters over the county court established in each county for appointing guardians, granting letters testamentary and of administration, for settling the accounts of executors, administrators and guardians, and for the transaction of business appertaining to estates, and original jurisdiction and general control over executors, administrators, guardians and minors, under such regulations as may be prescribed by the legislature.”

In so far as the constitution gives to any of the courts an exclusive jurisdiction over any subject matter, it is not within the power of the legislature to give that jurisdiction to another tribunal, in the absence of an express grant of such power to the legislature by the constitution.

The only grant of power of this character is to be found in sec. 22, art. V, of the constitution, which provides that “The legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change.”

This power extends only to civil and criminal jurisdiction, and has no reference to probate jurisdiction.

In so far as the working of the civil and criminal jurisdiction conferred upon the county courts was concerned, we were entering upon, with us, a practically untrodden path; not so in regard to the probate jurisdiction conferred upon that court; for the constitution gave that to the tribunal which had long exercised it under statutes authorized by the constitution, which in their language and intent were almost if not identical with that found in the present constitution. Hence the power was given to the legislature so to adjust the civil and criminal jurisdiction of the county courts, from time to time, as experience might indicate the necessity for so doing; that a tribunal could be found at all times so organized that the civil and criminal business of the country might be properly transacted, even if the county courts were found to fail to accomplish the purposes for which they were created.

No power was given by the constitution to the legislature to enlarge or diminish the probate jurisdiction conferred upon the county courts, nor to withdraw from the district or county courts any jurisdiction essentially civil in its nature, by conferring the same upon the probate branch of the county court's jurisdiction.

The action now under consideration was treated and tried, both in the district and county courts, as a proceeding in probate, and unless such a procedure can be sustained under the provisions of the constitution, it can receive no aid from arts. 2695, 2696, R. S.

That an action might have been maintained upon the guardian's bond executed by Reed and his sureties in the district court cannot be questioned. Francis v. Northcote, 6 Tex.,...