104 S.W. 1049 | Tex. | 1907
This is a certified question. Herman Tolle made application in the County Court of Comal County, sitting for probate purposes, for letters of administration upon the estate of Emil Tolle, deceased. The application was contested by Gustav Tolle. The County Court granted the letters and Gustav appealed to the District Court. When the case was called for trial in the latter court Gustav demanded a jury, which was denied him. The trial again resulted in the grant of letters. The contestant appealed to the Court of Civil Appeals and assigned as error the action of the District Court in denying him a trial by jury. The question certified and propounded is, in substance, did the District Court err in its ruling upon the point?
We are of opinion, that the question should be answered in the affirmative. Section 10 of Article V of our Constitution provides that "in the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be impaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum and with such exceptions as may be prescribed by the legislature." Language can not be more comprehensive than this. Hence if a probate proceeding is properly styled a "cause," this section undoubtedly gives a right of trial by jury. Bouvier defines a cause as "a suit or action. *34 Any question civil or criminal contested before a court of justice." The questions in this case are certainly questions contested before a court.
But we think that if there could be any controversy as to this matter it is definitely settled in the case of Cockrill v. Cox (