Walker v. Howard

• Decision Date: 01 May 1895
• Citation: 30 S.W. 1091
• Parties: WALKER v. HOWARD et al.
• Court: Texas Court of Appeals

30 S.W. 1091

WALKER v. HOWARD et al.

Court of Civil Appeals of Texas.

May 1, 1895.

Appeal from Fannin county court; James Q. Chenoweth, Judge.

Mandamus by H. P. Howard and others, administrators of the estate of Thomas C. Bean, deceased, against Robert Walker. From a judgment for plaintiffs, defendant appeals. Reversed.

The following statement of the case by appellant is correct:

This is a suit by appellees, as administrators of the estate of Thomas C. Bean, deceased, against appellant, as clerk of the district court of Grayson county, wherein plaintiffs sued for a mandamus against defendant, requiring him to deliver to J. F. Sadler, clerk of the county court of Fannin county, the record papers of the administration of the estate of said Thomas C. Bean, deceased, and of the partition proceedings of Sarah A. Dove et al. v. Howard et al., administrators, for the partition of said estate among the alleged heirs of said Thomas C. Bean, deceased. It was alleged in plaintiffs' petition that the administration of said estate was opened in said county court at its November term, 1887, and that in 1891, while said administration was pending in said court, Sarah A. Dove and others, claiming to be heirs of said Thomas C. Bean, made application in said estate, making plaintiffs, as administrators of said estate, and other alleged heirs of said Bean, defendants, asking for a partition and distribution of the property belonging to the said estate; that said application was pending in said county court on January 30, 1892, when the then county judge of said county caused to be entered of record an order transferring said application, which was styled on the docket of said court, "Sarah A. Dove et al. v. H. P. Howard et al.," to the district court of Fannin county, on account of the disqualification of said judge, the disqualification mentioned in said order being the fact that said county judge had been of counsel for some of the parties claiming an interest in said estate. Plaintiffs alleged that, in obedience to said order, the papers in said partition suit, together with the administration papers, were illegally transferred to the district court of Fannin county. Plaintiffs alleged that pending said partition proceedings a number of other claimants filed pleas of intervention, alleging their heirship to said estate; that at a special term of said district court held in October, 1892, on application of Mark Bean et al., interveners, said proceedings of Sarah A. Dove et al. v. H. P. Howard et al. were transferred to the district court of Grayson county by change of venue under the statute, and that in accordance with said order the papers of said partition proceeding, together with all of the court papers belonging to said estate, were delivered to the defendant, Robert Walker, who was the clerk of the district court of Grayson county. Plaintiffs alleged that the county court of Fannin county has jurisdiction of the estate of said Thomas C. Bean, and also the partition proceedings aforesaid, and that it has never lost jurisdiction by reason of appeal or by any other legal means, but that the partition proceedings were taken to the district court contrary to law, and with them were transferred without any order, and without legal sanction whatever, to said district court, the estate papers. Plaintiffs allege that they resisted in the district court of Fannin county the said application for change of venue, and at the same term of court made an application to rescind said order, and to remand the proceedings back to the county court. Plaintiffs alleged that on December 5, 1892, while said proceedings were pending in the district court of Grayson county, on said change of venue, they filed another motion to transfer said proceedings to the county court of Fannin county, and that all of said motions were overruled. Plaintiffs alleged that they had made demands on defendant that he deliver to the clerk of the county court of Fannin county all of the papers in his possession belonging to the estate of Thomas C. Bean, deceased; also all the papers in his possession in said case of Sarah A. Dove et al. v. H. P. Howard et al.; and that defendant refused to deliver said papers as so required. Plaintiffs prayed the court to grant them a writ of mandamus on defendant, Robert Walker, clerk of the district court of Grayson county, commanding him to deliver all of the papers in his possession belonging to the estate of T. C. Bean, deceased, and to the partition proceedings in the case of Sarah A. Dove et al. v. H. P. Howard et al., that were on file in the said county court of Fannin county before said removal, to J. F. Sadler, clerk of the county court of Fannin county.

The defendant excepted to said petition, on the grounds: (1) The court is without power or jurisdiction to grant the writ of mandamus against the defendant prayed for in said petition. (2) It appears from said petition that the papers mentioned therein, which plaintiffs seek by said petition to compel defendant by a writ of mandamus to deliver over to the clerk of this court, are record papers of a judicial proceeding in the district court of Grayson county, and that the same are now in custody of the defendant, as the clerk of said district court of Grayson county; and, under the law, it is the duty of this defendant to keep the same in his custody, subject only to the orders of said district court of Grayson county, and a compliance with the demand made upon him for said papers by plaintiffs, or with the mandamus of this court prayed for, would be in contempt of said district court of Grayson county, and subject him to punishment for such contempt. (3) Because it appears from said petition that plaintiffs have or had a plain, clear, and adequate remedy at law in the premises by appeal from said orders of removal or change of venue, and the said order of the district court of Grayson county overruling the motion to transfer said records and proceedings to this court, etc. And defendant, under oath, answered said petition, and the rule to show cause why the mandamus prayed for should not be granted, in which he admitted possession of said papers, and his refusal to deliver them on demand, as alleged by plaintiffs; but averring that said papers are upon file in and belong to the records of the district court of Grayson county, and are in his custody as clerk of said district court; that said papers are part of the records in the matter of the administration of the estate of T. C. Bean, deceased, and of the partition proceedings in said estate, which said administration and partition proceedings are now pending in said district court of Grayson county, and that he has no power over or in respect to said papers, save under the orders of said district court of Grayson county; that said administration and partition proceedings were transferred from the district court of Fannin county to the district court of Grayson county by an order of said district court of Fannin county made on November 1, 1892, the said administration and partition proceedings being then pending in said district court of Fannin county, and that the file papers of said administration and partition, pursuant to said order, were filed in the district court of Grayson county on or about the ____ day of December, 1892. Defendant further alleged that since said transfer the said administrators have been proceeding with the administration of said estate in the district court of Grayson county, and under the orders and directions of said court and of the judge thereof; that said administrator, H. P. Howard, has, from time to time, made applications for orders to sell lands belonging to said estate, and, pursuant to the orders of said court made upon such applications, has sold divers tracts of land for large sums of money, and has reported such sales to said court, and prayed for and obtained from said court orders confirming said sales; and that, generally, said administrators have been and are still administering said estate under and submitting themselves to the orders and directions of said district court.

The appellant's exceptions were overruled. The facts are not controverted, as shown by the agreed statement of the parties, to wit:

"Thomas C. Bean, died in Fannin county, Tex., July 24, 1887. Before the November term, 1887, of the county court of Fannin county, H. P. Howard applied to said county court for letters of administration of the estate of said Thomas C. Bean, and at the November term, 1887, of said court said Howard was appointed administrator of said estate. The said application was contested, and an appeal was taken from said order of appointment to the district court of Fannin county. On September 1, 1890, an order was made in said district court in said appealed cause appointing H. P. Howard and J. L. Hume administrators of said estate, and fixing their bond at the sum of $500,000, and directing said order to be certified to the county court of Fannin county, and a transcript of said order was duly filed in said county court within twenty days from the date of said order, and within the time required by law said Howard and Hume duly qualified, and letters of administration were duly issued to them by said county court, and they administered said estate in said county court until the 30th day of January, 1892. On November 9, 1891, Sarah A. Dove and others, claiming to be the heirs at law of said Thomas C. Bean, deceased, filed in the county court of Fannin county, where said administration was then pending, their petition against the said administrators, praying for a partition of said estate. On January 30, 1892, W. A. Bramlette, then the county judge of Fannin county, made and caused to be entered on the minutes of said county court the following order: `Sarah A. Dove et al. v. H. P. Howard et al. Saturday, January 30, 1892. The county judge being disqualified in this cause,...