Smith v. Paschal
1928 Tex. App. LEXIS 1465
Tex. Comm'n App.
1928
Check Treatment
NICKELS, J.

We refer to the opinion of the Court of Civil Appeals (Paschal v. Hobby, 296 S. W. 336), for complete statement of the case. It is sufficient here to say that the matter presented must turn upon asserted nullity in the probate order purportedly authorizing and requiring the administrator, in final settlement, to deliver the remains of the estate to the county clerk. That delivery was made, the property was lost to those entitled to receive it finally, and the order (with compliance by the administrator) was held (by the Court of Civil Appeals) to be a complete defense available to the administrator and his surety. The ruling was predicated, in the main, upon the opinions in Cameron v. Morris, 83 Tex. 14, 18 S. W. 422, Sabrinos v. Chamberlain, 76 Tex. 624, 13 S. W. 634, and Buchanan v. Bilger, 64 Tex. 589.

In chapters 25 and 26, tit. 54, R. S. 1925 (articles 3563-3573, 3574-3591, R. S. 1911) provision is made for settlement of administration, disposition of remaining assets, discharge of administrators, etc. If “there be any of the estate remaining in the hands of the executor and administrator,” it is said, “and the heirs, devisees or legatees * * * or their assignee, or either of them, are present or represented in court,” distribution “among them” shall be ordered (article 3641). But if those entitled, “or any of them,” “do not appear or are not represented in the court,” the county judge is required (article 3644) to make an order directing payment to. the state treasurer of “any funds of such estate remaining in the hands of the executor or administrator.” The state treasurer, of course, becomes, in such case, mere custodian or trustee (articles 3652, 3653).

In section 16, art. 5, of the Constitution, are to be found grants of probate authority, exercisable (it is to be assumed) conformably to valid statutory grants and regulations (Houston v. Killough, 80 Tex. 296, 16 S. W. 56), of which the provisions of chapters 25 and 26 are to be taken as examples. Thus, in respect to a particular subject-matter, the “course of the court” is laid down so as to include a particular grant of a definite power and specific directions for the manner of its user. In consequence, the method named is preclusive of others. Foster v. City of Waco, 113 Tex. 352, 255 S. W. 1104. Ex vi necessitate, whatever order is made (when read separately or with its “judgment roll”), there will be record exhibition of observance or disregard (as the case may be) of the statutory directions as to the kind of judgment required to be entered. Here, it thus appears, there was effort to use the power in entire disregard of the method by which its grant is conditioned.

The most usual statement of what makes a judgment void (distinguishable from voidable) is .lack of jurisdiction over the parties, or some of them, or want of jurisdiction over the subject-matter. But, whether really included in the first-named condition or not, there is a third (or supplemental) state of like effect, and that is absence of authority to award the particular relief which the judgment undertakes to grant. Crow v. Van Ness (Tex. Civ. App.) 232 S. W. 539, 541; Cooper v. Reynolds, 10 Wall. 308,19 L. Ed. 931; Freeman on Judgments, § 116; 33 C. J. 1076. This, we think, has recognition in Houston v. Killough, supra, Clayton v. Hurt, 88 Tex. 598, 32 S. W. 877, Crawford v. McDonald, 88 Tex. 626, 630, 33 S. W. 325; and it is not contra to anything said or held in the eases cited by the Court of Civil Appeals. The latter cases, and others like them which might be cited, had to do with mere irregular use of power and not (as here) with forbidden use of - particular authority or use of authority in a method different from that specifically prescribed by thé law of the court’s creation and being. We have the case of a nullity which appears in the face of the judgment and its roll — notice-' able “by any court and at any time” (Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770; Cotton v. Rhea, 106 Tex. 220, 223, 163 S. W. 2) — and not the ease of something void for de hors matter or mere irregularity and, hence, within the protecting doctrine of “collateral attack.”

The contract of Paschal and his surety included, an obligation of “well and true performance” of “all the duties required” of Paschal, administrator, under his “appointment” (article 3387, R. S. 1925; article 3310, R. S. 1911); inter alia the duty of “settlement” and distribution required in chapters 25 and 26. Release of the obligation is not a consequence of settlement and distribution of another kind,' resulting in loss to heirs, etc., even when pursuant to good-faith observance. of the void order (Lyons-Thomas Hdw. Co. v. Stove Co., 88 Tex. 468, 486, 27 S. W. 100; Seagraves v. Green [Tex. Com. App.] 288 S. W. 417, 424), or mistaken belief in its compulsion (Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926, 59 L. Ed. 1340, L. R. A. 1916A, 1124; Myers v. Anderson, 238 U. S. 368, 35 S. Ct. 932, 59 L. Ed. 1349).

There is error, it results, in the judgment of the Court of Civil Appeáls in respect to the liability of Paschal and his surety.

Relief against other defendants in error was sought “only in the event” the probate order mentioned be valid. Consideration of *1088the action of the district court and of the ■Court of Civil Appeals releasing Walker’s •sureties is unnecessary in view of the prayers for relief and the conclusion in the other branch of the case.

We recommend that the Judgment of the ■Court of Civil Appeals as between plaintiffs in error, E. C. Willis, Camille Smith and bus-hand, Eugene. L. Smith, Carrie Conn, Laura Doty and husband, Roy L. Doty, Janette Willis and husband, B. P. Willis, Fred H. Mun-■dinger, Howard Mundinger, Lsaette Simmert and husband, Julius Simmert, Clyde R. Conn, Earnest Q. Conn, Wilmot J. Spicer, Phoebe ■Cooper and husband, Guy Cooper, Grace Johnson and husband, C. F. Johnson, Ray P. ■Conn, Mrs. Martha Hazel Ryan, Martin Ryan, Dorthy Ryan, D. W. Ryan, Jr., Max C. •Otto and wife, Mrs. Ellis R. Otto, and Mrs. Ellis R. Otto, as guardian of the person and estate of D. W. Ryan, Jr., on the one hand, and defendants in error, J. A. Paschal and United States Fidelity 8s Guaranty Company, ■on .the other, be reversed, that the judgment of the district court as between those parties he affirmed, and that in all other respects the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

Judgment of the Court •of Civil Appeals reversed as between the parties named in the recommendation of the ■Commission of Appeals, and judgment of the ■district court as between those parties affirmed. Judgment of the Court of Civil Appeals in all other respects affirmed; all as recommended by the Commission of Appeals.