143 S.W.2d 414 | Tex. App. | 1940
This is a second appeal, the sufficiency of appellee’s pleading as a bill of review having been determined in Bevill v. Rosenfield, Tex.Civ.App., 113 S.W.2d 340, to which we refer for nature of the case and law points involved. Plaintiff, Frank Bev-ill, again stood for trial upon the same pleading (second amended original petition), to which special exceptions were urged and sustained to all allegations of fraud-and for recovery of the $800 fee in question. This left in the case no issue save the validity vel non of the probate court order, appointing appellant as attorney for Frank Bevill, “a missing heir”; and the subsequent order allowing the sum of $800 for services rendered on behalf of appellee in original probate cause No. 15,494. Our former opinion fully set forth the facts surrounding the entry of these two orders, and further detail thereof is unnecessary. Plaintiff, in many allegations
At the conclusion of the trial, the jury were given peremptory instruction to find the aforesaid probate court orders void, which became their verdict, and judgment was rendered accordingly.
On this appeal, defendant’s many assignments of error may be thus summarized: (1) That plaintiff, in his bill of review, offered proof merely of no service upon, or appearance by him in the probate cause, prior to' said appointment and allowance, and by failing to prove his further allegations touching such orders, a prima facie case was not established; (2) the essentials of a bill of review required an affirmative showing of meritorious reasons therefor, additional to proof of no jurisdiction over appellee’s person; (3) the court further erred in excluding appellant’s offer of evidence detailing the legal services rendered, their necessity, and the reasonableness of his fee, under which he, and not appellee, was entitled to an instructed verdict; (4) a situation of estoppel and ratification was presented by the undisputed testimony, whereby appellant should have had a peremptory instruction in his favor.
Appellant admitted in the trial court that no character of service was had upon appellee, prior to said appointment and allowance, other than the posting of notice at the time the application for administration upon the estate of Paul Henry Bevill, deceased, was filed; such fact also being reflected by the probate records in evidence at the hearing. It would follow that, as held in our former opinion, the orders under attack were without legal authority and void. Plaintiff’s diligence in filing and prosecuting his bill of review beng unquestioned, the admitted lack of service established his cause of action; and petitioner’s additional allegations concerning such fee were unnecessary. A judgment void on its face may be enjoined without a showing of meritorious defense thereto. August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303; Empire Gas & Fuel Co. v. Noble, Tex.Com.App., 36 S.W.2d 451; Perez v. E. P. Lipscomb & Co., Tex.Civ.App., 267 S.W. 748; San Bernardo Townsite Co. v. Hocker, Tex.Civ.App., 176 S.W. 644; Levy v. Roper, 113 Tex. 356, 256 S.W. 251.
Appellant’s defensive issues regarding the fee and of estoppel and ratification were likewise irrelevant; being affirmative matters to be asserted if and when appellee should seek a money judgment in a court of proper jurisdiction. Needless to say, the Dallas County Probate Court did not have that jurisdiction, Vernon’s Ann.Civ.St. Arts. 1970—1, 1970—4, Legrand v. Stubblefield, Tex.Civ.App., 63 S.W.2d 399; for which reason, the trial judge eliminated from the cause any attempt to recover the fund, and all issues tendered by defendant in such connection.
But appellant earnestly argues that our opinion upon the prior appeal contemplated that the defensive matters urged by him would be heard upon trial of the instant case on its merits; and that the refusal by the trial court to hear the proffered evidence on the reasonableness of the fee, character of his services, necessity for the appointment and benefits resulting therefrom, was contrary to the mandate of this court. Bevill v. Rosenfield, Tex.Civ.App., 113 S.W.2d 340. Of course, only the sufficiency of plaintiff’s petition as against a general demurrer was there involved; the limited extent to which the Dallas. County Court, sitting in probate, could take cog-nizánce of the bill of review not being before us for consideration. It had not oc
It follows that the court’s peremptory instruction was correct, and'the judgment predicated thereon must be affirmed.
Affirmed.