Bingham v. Waterhouse

32 Tex. 468 | Tex. | 1870

Morrill, C. J.

Previous to the April term, 1861, of the Probate Court of Harris county, John W. Waterhouse had been appointed administrator pro tempore of the estate of M. A, Bingham, deceased, and had filed in the court, for probate, a purported will of the deceased.

The probating the will was contested by George O. Bingham, who claimed to be a brother and heir of the deceased, and who had also filed his application for letters of administration of the deceased at a previous term of the court, and had been appointed as such administrator.

At the April term the Probate Court ordered and decreed that Jno. W. Waterhouse, the administrator pro tempore heretofore appointed, deliver over to the administrator in chief, George C. Bingham, all the property of said estate in his possession, including the slave girl Sarah, money and other effects.

From the foregoing order to deliver up the slave girl Sarah, and $500 of the money on hand, J. W. Waterhouse appealed and gave bond.

At the District Court this case came on for trial. Water-house appeared and filed a statement dismissing his appeal ; whereupon the court ordered the appeal to be dismissed at the cost of appellant.

From this judgment the administrator appeals to this court.

The question presented is: could the administrator pro tempore, against whom a judgment had been rendered in the County Court, and who had brought his case up to the District Court for revision, dismiss the same at his own volition ?

It must be recollected that the administrator, Bingham, was the party in the Probate Court who had caused Waterhouse, administrator pro tempore, to appear before the court and make a settlement. At that court he was ordered to deliver the property, as above stated. When the parties appeared in the District Court they occupied the same relative positions of plaintiff and defendant they did in the Probate Court, because the appeal was required to be tried da novo. (Art. 1460.)

He had the same right to dismiss or enter a nolle prosepiii in the case that he had in the Probate Court, and no other; and this right was the same that any defendant has in the District Court to dismiss the case from the docket..

If lie meant by dismissing the appeal that he had no defense, the court should have affirmed the judgment of the Probate Court, and also, agreeably to the requirements of Art. 1356, entered a judgment for ten per cent, per month upon the value of the property not delivered according to the order of the Probate Court, from the time of the order of the Probate Court to the time of the judgment of the District Court.

The judgment of the District Court is reversed and remanded.

Reversed and remanded.