221 S.W. 579 | Tex. Comm'n App. | 1920
Plaintiffs, who are the children of C. L. Goodman, deceased, sought by certiorari from the district court to review certain orders of sale of real estate, entered by the county court of Orange county in a
The facts material to a clear understanding of the merits of the controversy follow:
Plaintiffs inherited the land in question from their deceased mother. Some time in 1902 O. D. Goodman was appointed guardian of the estates of the plaintiffs, and later, in the same year, he was elected clerk of the county court of Orange county, in which court the guardianship was pending. On February 3, 1903, the court entered an order, authorizing the guardian to sell the property, and on February 10, 1903, an order, confirming a sale by the guardian to George E. Williamson at $7.25 per acre. On April 23, 1904, the court entered an order upon further application of the guardian, authorizing the latter to make sale to Williamson of only a part of the land at the original price of $7.25 per acre, it having been found upon examining the title that as to the remainder of the land there was a defect in the title, and Williamson was unwilling to comply with his bid as to that portion. Deed by the guardian was made to Williamson in accordance with said order. Eater, in 1907, title to the remainder of the land having been cleared, the guardian executed a deed to Williamson, conveying said property at the same price per acre as originally ordefed. This deed recites an order of the probate court of date April 30, 1907, authorizing the guardian to make sale upon the terms stated in the deed. The original application for certiorari sets up the four orders above mentioned, and sought to have them annulled as being void or voidable, on the ground that at the time they were entered the guardian was the clerk of the Court in which the orders were entered, and issued the notices upon the applications for said orders, and transcribed the orders upon the minutes. By an amended application, the plaintiffs asserted that the order of April 30, 1907, recited in the guardian’s deed, did not appear upon the minutes or other records of the court, and had not in fact ever been made. We need not notice the pleadings of the defendants further than to state that they alleged, among other things, that the guardian obtained full value for the land, and plaintiffs were in no way injured by any irregularities in the sale. The findings of the trial court support this pleading.
The writ of certiorari was known to the common law before statutes authorizing and defining its use and application were enacted, and it seems to be well settled that—
“Except where so made by statute, the writ of certiorari as used to correct the proceedings of inferior tribunals is not a writ of right, bub issues only on special cause shown to the court to which application is made, and the court is vested with judicial discretion to grant or refuse the writ as justice may seem to require.
“If the error is manifest and substantial injury has been sustained, the writ should be allowed; but the court will not award the writ*581 where the errors complained of are merely informal and technical, or where, although there is error in fact, substantial justice has been done, and no appreciable injury has resulted to the complaining party.” 6 Cyc. 748, 749.
The application should show, not only illegal action below, but also consequent injury. 6 Cyc. 782.
In an action by certiorari to review a judgment of the justice court, Judge Wheeler, in the case of Criswell v. Richter, 13 Tex. 18, says:
“It has been settled by repeated decisions of this court that a petition for a certiorari must disclose merits. It must appear that the petitioner had a good cause of action or ground of defense, and that wrong or injustice has been done him in consequence of the error or illegality complained of. Mere irregularities, or errors which have operated no prejudice to the right of the party, will not suffice as a ground for obtaining a certiorari.”
The rule above stated has been repeatedly announced and applied by our Courts of Civil Appeals to certiorari from the district to the probate court. '
In Fitzwilliams v. Davie, 18 Tex. Civ. App. 81, 43 S, W. 840, the heirs of Minerva J. Fannin sought by certiorari to annul an order of the probate court in the guardianship of said Minerva, authorizing a sale of her property, for irregularities in the notice of application for sale. The property was sold for 8400. The evidence showed that the property was then worth 8600. Immediately after the sale, the purchaser sold to Davie, the latter agreeing to pay 81)000 absolutely to the guardian of Minerva in five annual installments of 8200 each, and thereafter 8250 per annum during tfie life of Minerva. The judgment of the district court denying the relief sought by plaintiffs was affirmed by the Court of Civil Appeals, that court holding:
“We also agree with the trial court in holding that a writ of certiorari to set aside orders made by a probate court is not a matter of right, and if the testimony shows, as in this case, that, as a result of the sale, the ward has received benefits equal to the value of the property, the probate orders should not be disturbed.”
The same conclusion was reached in Comstock v. Lomax, 135 S. W. 185, where it was held that irregularities alone in the application for sale are not enough to require the sale to be set aside, but that it must appear in connection with such irregularities that a disadvantageous sale was effected. In each of these cases a writ of error was denied.
From these authorities we think it clear that the plaintiffs* are not entitled to have the orders of sale annulled, in the absence of a showing of some injury; and, as the contrary appears from the findings of the trial court, we’ conclude that that court properly declined to disturb the orders.
We conclude that the judgment of the Court of Civil Appeals should be reversed, and the judgment of the district court affirmed.
©=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes