61 Tex. 511 | Tex. | 1884
In the case of Davenport v. Hervey, 30 Tex., 327, this court held, in effect, that a party contesting an application in the county court might be required by the applicant to state his interest in the estate; but that this must be done by a precise exception taken to his appearance in the case. They also held that this exception must be taken in limine, and could form no part of the inquiry after an issue had been made upon the merits.
When the present case reached the district court on appeal the parties occupied the same position towards each other as they did in the county court, and the trial was to be da novo, as if originally brought in the district court. R. S., art. 2207.
To test the interest of the contestants in the matter, Mrs. Newton might then, as well as she could have done in the court below, have excepted to their right to contest her application, and have required them to state their interest in the proceedings. But, in that event, she was required, as in the.county court, to except before going to trial upon the merits, and that, too, .by exceptions to their right to contest and not to their right to appeal. The effect of such objections as she might properly make would be not to dismiss the appeal, but to dismiss the contestants from the cause.
On a motion to dismiss, the transcript from the lower court alone could be looked to; on exceptions taken to the pleadings of the appellants as not showing a right to contest, evidence might be heard, and the transcript would not be looked to at all, except to show the state of the pleadings of the parties, and not even then if they had been substituted in the district court.
Now it is clear that there are many instances where the transcript from below would show no interest in a contestant, and yet he would be entitled to an appeal.
One would be where he had not appeared at all in the county court, but appeared as a party for the first time in the district court as an appellant. It was held in the case already cited that an interested party might appeal, although he did not appear below. The transcript from the county court in such case would not recognize him at all except in the appeal bond, and yet the case could not be dismissed for this cause without depriving him of a clear statutory right. R. S., art. 2200.
Another would be where the contestant had. appeared below, but, upon exceptions, the court had held that he had no interest in the matter. Then, too, it would clearly appear that he had no interest from the ruling of the county court, found in the transcript, but the appeal would not be dismissed, for the question of interest in the subject matter would be for trial da novo in the district court. And so in the other supposed case, and in the present one, that question must be tried as any other issue in the district court, upon proper
In this case the appellants, after the case reached the district court, filed an additional pleading setting up that they were the children of the deceased, and as such interested in his estate. If this was not a sufficient showing of interest, the appellee might, by proper exceptions, have compelled a more specific statement of the manner in which they became interested. If the interest was specifically stated, she could have excepted to its sufficiency or put them upon proof of their statements, and have had the question of interest settled before being forced to a trial upon the merits. But she chose to object by motion to dismiss the appeal, which we have seen she had no right to do, and for the error of the district court in sustaining that motion the judgment is reversed. and the cause remanded.
Reversed and remanded.
[Opinion delivered May 6, 1884.]
