Simmons v. Gardner, No. 7700

No. 7700 | Tex. | Nov 20, 1940

Mr. Judge German

delivered the opinion of the Commission of Appeals, Section A.

This action originated in the probate court of Tarrant County. It had for its purpose the probating of the will of Gertrude S. Wilson, deceased. Application for probate was denied by the county court, and by certiorari the matter was taken to the district court. There probate of the will was again denied. Findings of fact were filed in the district court showing that the reason for denying probate was lack of sufficient pleadings. The Court of Civil Appeals affirmed this judgment. 134 S.W.2d 338" court="Tex. App." date_filed="1939-11-10" href="https://app.midpage.ai/document/simmons-v-gardner-3957244?utm_source=webapp" opinion_id="3957244">134 S. W. (2d) 338. The opinion of the Court of Civil Appeals shows the peculiar situation with reference to the pleadings. Writ of error was granted because the Supreme Court thought the pleadings were sufficient.

Defendants in error by their attorneys of record have filed in this Court a confession of error on the part of the district court and of the Court of Civil Appeals, admitting that the pleadings were sufficient to justify an admission of the will to probate. They also request that the judgments of the Court of Civil Appeals and of the district court be set aside, and judgment rendered ordering the will to be admitted to probate. In the alternative, they pray that the cause be reversed and remanded to the district court.

We do not think this Court is authorized, under the circumstances, to render judgment, but in pursuance of the admission of error and request of interested parties, the cause should be reversed and remanded.

The judgments of the Court of Civil Appeals and of the district court are both reversed and the cause is remanded to the district court for such further action as the court may find to be appropriate in light of the agreements of the parties and developments since the former hearing.

Opinion .adopted by the Supreme Court, November 20, 1940.