Blair v. Gay, 33 Tex. 157

Blair v. Gay

33 Tex. 157 | Tex. | 1870

Morrill, C. J.

The only matter for adjudication in this case is, whether a defendant in a suit in the district court, based upon a judgment rendered against him in the county court, upon final settlement as a guardian of the property of a lunatic, at the instance of the same plaintiffs, can set up as a defense, within two-years after the rendition thereof, errors in the judgment so rendered.

There is no question hut that the defendant could, by cei'tiorari, have the the. judgment remhved to the district court for revision ; and also, that the parties antagonistic would he the same as in the 1 case before the court. (Art. 3992, • Paschal’s Digest.) In that case, the same identical questions would be raised for adjudication, that the defendant seeks to raise in the case as it is, having the same parties, the same testimony, and before the same tribunal. Until two years had elapsed, the judgment of the county court was similar to an interlocutory judgment in the district court, which the defendant could attack in any manner he might choose, before the district court, having cited the proper parties, and he can do the same thing if the opposing party should voluntarily appear, or, as is the present case, cite him to appear and show cause why execution shall not issue thereon.

Article 144Í provides, that “ the defendant may plead as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may he pertinent to the cause,” etc.

*165The policy that pervades our whole system of jurisprudence requir.es parties to settle in a single suit all their controversies practicable. (See Haggerty v. Scott, 10 Tex., 525; Ponton v. Bellows, 22 Tex., 681; Henderson v. Morrill, 12 Tex., 3.)

The judgment is reversed and cause remanded.

Dsnisou, J.

This suit was brought at the fall term, 1868, of the District Court of De Witt county, by Gilbert Gay and Eliza Gay, as administrator and administratrix of the estate of John 27. Morrison, against Wm. A. Blair and the sureties on his bond as guardian of the estate of the lunatic, John 27. Morrison, to recover the sum of $157.15, which had been decreed and ordered by the' Probate Court of De Witt county, at its 27ovember term, ] 867, to be paid by Blair to the plaintiffs. Suit was dismissed as to all the sureties of Blair, except T. J. Wheat.

Blair and Wheat filed separate answers, each impugning the decree of the county court, alleging that it was rendered without an appearance, or answer filed by the guardian; that it was based upon the receipt by Blair of Confederate money, from an insolvent debtor of his ward, and that Blair was entitled to certain credits that had not been allowed.

A certified transcript of the proceedings in the probate court was filed as a part of their answers, and each prayed that the district court would review, revise and correct the decree and order of that court. The plaintiffs excepted to so much of the answers as attacked the decree and order of the county court. The exceptions were sustained, and for error in that ruling, the cause is brought to this court for revision.

It is contended by counsel for defendants in error, that the decree of the county court is conclusive as to the defendant, Blair, and his sureties, until reversed: and that it could only be reversed in one of the modes prescribed by the statute, viz : by appeal or certiorari.

*166Article four, section six, of the Constitution of 1866 gives to the district courts, “ anginal and appellate jurisdiction and general control 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.” Article 8922, Paschal’s Digest, provides that, “ any settlement of the account of any guardian may he revised and corrected in the district court of the county, at any time within two years after such guardian has ceased his duties, upon proof that there was fraud or mistake in such settlement.”

It seems from the Constitution and statute above quoted, that the district court has general control, and original as well as appellate jurisdiction, “over all matters for settling the accounts of executors, administrators, and guardians; ” and it matters not in what manner a certified copy of the proceedings of the county court may come before it, whether it be in answer to a writ or otherwise.

In this case the district court had jurisdiction, and should have reviewed the proceedings of the county court. The attack was direct and not collateral.

The judgment of the district court in sustaining the exceptions to the answers was erroneous.

The judgment is therefore reversed, and the cause remanded for ‘ further proceedings in accordance with this opinion.

Reversed and remanded.