30 Tex. 308 | Tex. | 1867
In January, 1851, the appellant, William Davenport and James McDaniel, by appointment from the county court of Harrison county, became the administrators of the estate of Thomas Murphy, deceased, and have since continued to act in that capacity. At the August term, 1859, of said court, their exhibit and ábcount of the condition of said estate, which had been previously filed, was presented to the court, on their application for a final settlement of their administration on said estate. Exceptions were filed to their account by McFall & Co., Done-gal! & Co., James W. Hervey, and J. A. Heard, purporting to act for the heirs and creditors of the estate. On the hearing of these exceptions and the examination of their account, as re-stated by the administrators, it was ordered by the court that the administrators should settle said estate upon the basis exhibited in their account as re-stated, from which it appeared that there were only assets in their hands sufficient to pay the general creditors seventy-two cents on the dollar of their claims against said estate. From this order of the county court the exceptors .to said account give notice of an appeal to the district court. But
The first ground upon which it is insisted the judgment of the district court should be reversed is, that that court had no jurisdiction to try the case, for the reason, as is said, that the appeal bond for the removal of the case into that court was not filed with the clerk of the county court within fifteen days after the order or decree of the county court from which the appeal was taken. The transcript does not show on what day of the August term of the county court its decree was made. We judicially know, however, that the term of the court for that month commenced on the 29th day of it. And it seems not improbable . tha? it must have been several days before a re-statement of the accounts could have been made by the administrators and the final action of the court had in the case. If so, the appeal bond, which was filed on the sixteenth of September, was given within the time prescribed by the statute. At all events, as this objection was not made in the district court, when the facts could have been easily shown, and it does not appear from the record before us that the district court had not jurisdiction, it must be held, in accordance with the uniform presumption in favor of the correctness of the action of that court when the contrary is not shown, that it did not wrongfully assume jurisdiction in the case.
Again, it is said the district court had no jurisdiction, because appellee, Hervey, the appellant from the judgment -of the county court, was a stranger to the record, was not
It is also said that the appeal only authorized the district court to adjust and decree the amount which appellee was entitled to receive as a creditor. If this were correct, it would present no objection to.the judgment of the district court; for, as we have just said, appellee claimed to act in behalf of the heirs, as well as creditors, and as the decree of the county court did not determine who are the heirs, their being no funds, in its judgment, in the hands of the administrators for distribution among them, we cannot say that appellee may not be entitled to a share in the estate as an heir. Nor should the judgment of the district court be reversed if it appeared that appellee had no other interest in the estate than as a creditor. It is the order or decree of the county court, passing upon the exhibit and account of the administrators for final settlement, from
The remaining objections to the judgment, which have been discussed by appellant’s counsel, go to its sufficiency and correctness, and not to the foundation of the action; and, as no assignment of errors has been made in the case, we are not called upon to consider them. The record shows that two days after the entry in the district court of notice of appeal, appellee gave appellant’s counsel notice that he would file the record in this court, and insist on a hearing of the case at the ensuing term of the court, then about commencing its session at this place. And the trans-script was filed in this court within less than forty days after the rendition of the judgment in the district court. The district clerk has omitted to make an indorsement on the transcript showing to whom it was delivered, or at whose instance he forwarded it to this court, if he acted as the agent of one of the parties in doing so, as has always been required by the rules of this court. It is not the duty of the clerk to forward transcripts to this court; and he
The appellant was certainly entitled to forty days from his appeal within which to assign errors in the court below; and if the transcript was filed in this court by appellee in less than that time, appellant could, nevertheless, have assigned errors in the court below; and on his filing a transcript within the time prescribed by law, the transcript filed by appellee would have been dismissed at his cost; or appellant might, after assigning errors, have had them certified to this court, and incorporated with .the transcript previously brought up by the appellee. It may be said that appellee, by bringing the transcript into this court before the expiration of the time given appellant to assign errors, has waived the right to insist on errors being assigned; or, at most, that he could only claim that he should be notified in this court of the errors relied on by appellant before the submission of the cause. It must be observed, that the statute upon this subject is mandatory and emphatic, and was evidently intended as well to enable this court to make a proper disposition of the cases brought before it, as for the protection of appellees and defendants in error. And we do not, therefore, feel called ;ipon to regard the mere submission of a case by the parties,, on briefs, as obviating an observance of this plain requirement of the law.
There is no error in the judgment, and it is therefore
Aeeirmed.