Poole v. Rutherford
199 S.W.2d 665
Tex. App.
1947
Check Treatment

*1 665 comply its contract insurance carrier with POOLE RUTHERFORD et al. notice dts cancellation to Mrs. mailing

Aviritt? The cancella 14806. it did. No. think We un plain is tion clause contract f Appeals Court o Texas. Civil right to ambiguous. company had the Fort Worth. “by to the insured policy mailing cancel the 17, 1947. Jan. written policy at the shown address this Rehearing 1947. Feb. Denied notice five stating than less days, when cancellation be effec thereafter such mailing

tive. The notice afore of such proof

said shall notice and be sufficient

the effective and hour cancellation date

stated shall become the notice end policy is period.” The evidence with fully dispute company complied

out provision policy.

with the foregoing of its

See States Life Ins. Co. California-Western Williams, Tex.Civ.App., ; point Frontier-Pontiac, dismissed) (writ

Inc., Co., Dubuque & Marine Fire Ins. 746;

Tex.Civ.App., Austin Fire Polemanakos, Tex.Com.App., 207

Ins. v.Co. 1, 925; point p.

S.W. v. Trav Summers Co., points 1-4, elers Ins. F.2d 1336; Appleman Insurance, A.L.R. Vol. § p. testimony record with

reference to cancellation direct

positive there circumstances tending

tne record impeach or discredit testimony respect tendered this frequently held,

matter. “It how has ever, that, when evidence inter anof positive

ested witness direct and

point issue, at there no cir where

cumstances in the record dis tending to testimony, impeach

credit his a verdict

contrary aside, will thereto be set that such

testimony verdict, justify will an instructed

and that judgment contrary may thereto and rendered.” reversed Dunlap v. Wright, Tex.Civ.App. point 280 S.W. and authorities there collated. p. Since insurance com carrier

plied policy with the as to

giving notice cancelling the same and

since the evidence dispute that without given

such notice prior loss ac cruing to the plaintiff, follows that the

judgment of the trial must be rever rendered,

sed and and it is so ordered. the trial rever-

sed and rendered.

«66

presented a verified to the administratrix which, parts, formal omitting the reads follows: as nursing, car- “For rendered services furnishing Grubbs ing for and for J. J. period of 20 during for a his last sickness months, February 23rd, beginning 24th, 1944, 20 including December and reasonable cost months at the services day, per per which day 24 hours for $12.00 months for 20 equals a month $360.00 . . . $7200.00.” February dated was February 19, and on indorse- toto administratrix writing. inment clerk, The claim filed with the and on March the claim was county judge, who on said declaring date an order in sub- entered parties attorneys stance that the and their appeared and in con- submitted the matter troversy, claim had theretofore administratrix, disapproved by court, evidence, heard the arguments of counsel and all matters law, approved as well fact as the claim per day eighteen amount of for $5 months, per day months and for two $12 adjudging claimants recover of and from the $3,420 estate the sum of ordering the pay administratrix to any claim out of property funds possession. her appealed The administratrix from said court, order to district the record on appeal being filed on 29th, and March 11,678. docketed as cause May No. On> See, also, Tex.Civ.App., 190 S.W.2d 146. Mr. and Mrs. filed in said Rutherford pleading styled cause a as their original Spence B. Friberg, Sam Walter J. petition. May On 28th the Rutherfords Falls, appellant. both Wichita for filed an court, King, Marshall & Fred T. Arnold and T. 11,728, docketed cause seeking No. Rodgers, Graham, appellees. all of J. recovery on their claim for services ren- Mr. dered Grubbs. On May 31st the two McDonald, Chief Justice.. were causes consolidated order of the Grubbs, a Young County, resident of J. J. pleadings court. The are sufficient to Texas, died intestate on December raise the issues which we discuss. daughters, His two Mrs. Louetta Poole Rutherford, and Mrs. Ethel were his jury sur- Trial before a resulted in judg- viving appointed heirs. Mrs. Poole was ment in favor of the Rutherfords in the qualified $4,800. administratrix of his es- sum administratrix has Rutherford and pealed, eight tate. Mrs. presenting points her husband of error. appellees are trix. first contended authority passing It His was limited to prosecuting off claims cut approved had been Article Appellees reason administratrix. offered ar- have Statutes, gument which reads Civil Revised effect the administratrix *3 money against disqualified for follows: “When a claim was by to on the claim by rejected the executor being estate, an estate has been reason of interested administrator, whole or in either in pre- or that the claim properly was therefore part, may, within the of such claim owner to judge, sented the likening the case days ninety rejection, after and not to such that of a claim by held the administra- thereafter, bring against tor, executor required suit the by 3526 Articles or administrator for establishment by the 3527 to county judge. be acted on the any jurisdiction in thereof of We support can no find either in the stat- the same.” in utes or the argument decisions for the j>yappellees. advanced As a rule adminis- argue Appellees for that their claim trators are in they interested the estates rendered services Mr. Grubbs was not a persons Most the administer. of entitled to governed by money claim for as is the such preference the appointment order in of are provisions of Article 3522. We overrule persons who are interested in the estate. authority this contention under of Anderson Art. 3357. There nothing in the statutes Paso, First Nat. Bank El 120 v. of Tex. suggest disquali- to that administrators 768, 313, Wheat, 38 Jaye v. fied to against claims the estate Tex.Civ.App., 130 S.W.2d 1081. lat simply they because in interested the ter case the same claim .involved kind of estate. that involved here. early days Since our laws have money presented A claim for to first required rejected brought that suit be on a approval rejec- the administrator for or money claim for months. In within three tion. Art. 3509. It must be verified. Art. Page Findley, v. the Tex. where presented 3514. itWhen to the admin- out, early language statute is set in similar istrator, required he is to indorse thereon to that found Article Chief Justice or a annex thereto memorandum in writ- Hemphill allege declared failure to signed by ing him, allowing rejecting or compliance by bringing the statute suit the claim. Art. If al- the claim is days ninety advantage within could be taken by administrator, lowed the it must en- be plea by petition of or demurrer. upon docket, tered the claim then be Jaye Wheat, Tex.Civ.App., passed on the county judge. Art. 3520. 1081, subject general was held to demurrer If, however, the rejected by claim is failure allege showing for facts to administrator, in part, whole or in it is not brought days ninety suit had been within presented then county judge, to the but rejection after of the claim the adminis- the owner may, claim ninety within Boyd, trator. In Gaston Tex. days rejection after administrator, held the claim was barred because was thereafter, not bring suit brought ninety was within suit for administrator the establishment of the day period. any jurisdiction court having Appellees seek to avoid the effect of the same. Art. 3522. failure to file the district court pointed required As has out, been within the reason the claim 5539a, by appellees provisions Article Vernon’s administratrix February 19th, Tex.Civ.St., Leg., p. 124, Acts and suit was not filed thereon in which reads as follows: “When an the district court ch. ninety days any way, more than shall dismissed in be or after that date. mistakenly presented to the coun therein be set aside a shall ty judge rejection by after the proceeding, annulled direct because of adminis- a tratrix, county judge, but the sitting want of of the Trial Court a probate, authority filed, to had hear a in which such action shall have which had been sixty (60) days such dis- and within after administra- final, time, disposition given becomes holds other and then missal or Court ninety day such action in a failure sue shall commenced within the limit, Proper Jurisdiction, period rejection claim, must, between after quote opinion, com- filing effectually the date of first and that of “as ex- tinguish present not be mencement in the second Court shall the failure it within required counted of limitation time under the former law.” part Jones, In opposite party in abatement unless Cotton owner sought inten- of filing have been in the claim show first to be relieved his jurisdiction.” disregard bring ninety days tional failure to suit within after rejection showing the claim presentation They argue *4 executor was out the at of state the time county judge of claim the the after to rejected claim the and remained out of rejection by amounted the administratrix the state until the institution of the suit. juris an action to a trial court without in The court nevertheless held the suspend running diction such as would the barred, saying: ninety day Appellant time limit. argues proceeding before the coun opinion 1311, that the “We of are the that Article ty judge Digest, was not an action in a trial court. requires Paschal’s which be to argues filing on brought months, She of suit the proper- within three not is county claim a court aly civil suit statute of limitation which would be suspended would have been in a court an action trial provisions under the of Article jurisdiction, plead 24, not having but that no Digest. Paschal’s county court, ings sitting were filed the in “The authentication of a claim probate court, proceeding and that the as a the estate of person, a and deceased the consisted more an of no than unwarranted presentation of for allowance attempt county judge the to on the approval, purpos- to all intents and claim after had been the the prosecution es of commencement the of county The a administrator. court is court if, claim, presentation, the same pro sitting of in general when approved, be allowed and a becomes matters, provided by bate is and it statute judgment against estate, if the but it be that its action on claim shall have the a rejected, 1311, Digest, then Paschal’s Article judgment. force effect of a final Art. remedy, gives a very further much the in proceeding 3525. But whether or not the appeal, upon nature of condition an county judge before the was an in action prosecuted same be within three months. jurisdiction, a trial court not within provisions very of simi- this statute 5539a, purview question the of Art. another in providing lar character to those for new ninety day to determined the is whether trials, appeals, error, and writs of to period in period Art. 3522 set of out a Court, Supreme and these have been decided contemplated by limitation Art. such as is to be Cunning- not statutes limitation. 5539a. We have come to the conclusion 490; Perkins, ham 28 Tex. v. State v. Art. 3522 not a statute limitation Kroner, 2 Tex. And if not statutes of part gen such sense. It is our not limitation, they are then affected statutes, a, eral but is strict limitation rule of Article Paschal’s procedure, operation which in its Digest.” shortening result in general can holding in Cotton v. is cited Jones Jaye of limitation. is said in As v. approval by Supreme Court Wheat, Tex.Civ.App., Lanius, Hunter 82 Tex. S.W. supra: ninety days cited “The is not again where it is said that the suit on sense, of limitation in the a statute usual rejected nature of an qualification upon but constitutes a appeal from the of the administrator the action.” right to maintain the claim. Boyd, 52 Tex. In Gaston court ninety day the rule that claims refers to will statute is become thus described .The Neill, in Stanfield v. barred unless to administrator 688: hitherto, county nor do we now have not “We undertook to claim, time, recognize part. the law after March limiting and allowed it On rejection, 29th presentation perfected appeal the com- to. the administratrix against executors and to the mencement of suits district court order of the from the administrators, county properly statute of May appellees filed court. On limitations, suspended by present pleading, styled original petition, Con- a their appealed stitution. the cause the district thus court. This was more than pro- regulations “It our one of the after the date the administratrix system, imposes bate the loss of the May appellees claim. 28th On filed claim, party neglects bring if his suit court an suit on their required time facilitate rejected claim. The causes were con- two per- estates settlement of deceased solidated order of the district court. In sons.” final the district court the Jaye This case and followed in is cited order purporting Wheat, supra. allow part the claim in was declared null Sams, opinion in Thacker v. Tex.Civ void, recovery but a was awarded *5 App., S.W.2d cites pellees original on their suit filed in the proval following quotation district court. Jurisprudence, p.'148: Texas “Because of In their rehearing motion for in this mandatory prohibitory character of appellees urge among things court other noticed, the statute above a failure to insti- lodging appeal that the of the the district prescribed tute suit within the court on March 29th vested the district absolutely, against bars the claim the heirs jurisdiction appellees’ claim, court with as well executor or adminis- satisfying require- and had the effect In trator. other the statute in words such ment of Article 3522 that suit on extinguishes claimant, right case proper jurisdiction be filed in a court of merely affecting remedy. instead rejection after the may expiration No suit be filed after the the claim by the administratrix. statutory period. of the The statute is one acquire regulations system The district did not probate court jurisdiction which, by of the claim virtue of by the loss of his claim on imposing appeal creditor, filed the administratrix. It tardy ac tends to facilitate the quired jurisdiction only by of such claim settlement of estates.” original by appellees filing of pronouncements, In view the above county juris that court. court had no opinion is our of Art. rejected claim, diction on applicable governed 5539a are not to cases acquired jurisdiction the district court Appellees’ Art. 3522. claim was there- appeal. jurisdiction do so It had they fore barred at the time filed suit probate appeal only to declare null thereon in the court. This renders void, did, the unauthorized order unnecessary questions a discussion of other court. The situation is analo raised the briefs. gous Cole, to that found Huston appearing It that there is insurmount- where it recovery able obstacle to appellees, the probate said: “The being without judgment trial court is reversed and jurisdiction question on raised here they rendered that take by Garner, Mrs. the district court had none nothing their suit. appeal, being limited to On Motion for Rehearing such as the could properly have exercised.” As shown in our opinion, appel- lees’ consideration, the adm.ius- After careful we are of tratrix, and was opinion administra- motion for rehearing trix February overruled, 19th. On March 23d should and it is so ordered.