181 S.W.2d 835 | Tex. App. | 1944
Pleas in abatement (res adjudicata) filed by various defendants and directed to fourth amended original petition of appellant (plaintiff below) were heard by the trial court in connection with evidence. They were thereupon sustained, as were certain special exceptions to the trial pleading; and plaintiff declining to amend, the cause was dismissed with prejudice, resulting in this appeal.
The following prior appeals have material bearing on the issues raised and are made part hereof by reference: Cheney v. Norton, Tex. Civ. App.
The instant suit, filed in the District Court of Dallas County May 8, 1935 (numbered 14,897D), was by Cheney against Albert B. Hall, executor of the estate of H. L. Norton, and Fidelity and Deposit Co. of Maryland, as surety on the Nettie L. Norton bond, executed by the Nortons in 1922, in connection with her appointment as guardian of the estate of George H. Cheney, N.C.M., mentioned in
This record does not include a statement of facts, but judgment recitals disclose that plaintiff Cheney was denied relief because of the law announced on previous appeals; it having been heretofore adjudged that the Cheney probate proceeding was not void on its face and therefore immune to collateral attack.
Appellant's assignments and points need not be specifically set out in view of the fact stipulations made by the parties, inclusive of an agreement on controlling questions of law, viz.: "It is hereby further agreed that there is no controversy as to the facts and that the only law issues in the case are whether or not the plaintiff in this cause numbered 14,897-D can therein, thus attack the guardianship proceedings, in view of the final judgment in said cause numbered 26,150-A, wherein it was held he could not collaterally attack the same, under plaintiff's pleadings in his bill of review in the County Court, and consequently whether or not the trial court, in this cause, was authorized, under the law, under plaintiff's pleadings therein, to dismiss plaintiff's suit as to all of the defendants therein."
Adverting to the Cheney bill of review, the District Court held that same was a collateral attack upon aforesaid guardianship (defect of parties), which ruling was approved by Judge Hickman for the Supreme Court (
But appellant argues that he is now prosecuting a direct attack upon the earlier probate orders, all persons affected by the prior proceeding being parties hereto. Such an attack in one court upon the judgments of another court is nevertheless a collateral attack. Empire Gas Fuel Co. v. Albright,
The trial court correctly ruled on the several pleas of res adjudicata, rendering unnecessary a discussion of other points of error. However, the exceptions of John Hancock, individually, and as executor of the estate of G. M. Hancock, also Helen M. Viglini, involving pleas of limitation, are well taken on the face of the record; these defendants not being made parties until May, 1943.
The judgment under review must be affirmed.