Wilson v. Catchings

41 Tex. 587 | Tex. | 1874

Gould, Associate Justice.

On the 22d day of August, 1873, appellant, Wilson, applied to the District Court of Kaufman county for letters of administration on the estate of Augustus Oatchings, deceased, alleged to have died on February 26, 1873, and to have resided in said Kaufman county at the time of his death. On October 1st ensuing, an order was made granting him the administration, and on the 6th of the same month, he having given bond and taken the oath, a further order was made that letters be issued. On the same day Sally Catchings, claiming to be the wife of deceased, filed a motion to revoke the letters of administration, alleging, amongst other things, that the home of deceased was in that part of Kaufman county then comprehended within the limits of Rockwall county; that the court had no jurisdiction, and asking also the transfer of the cause to Rockwall county. On the hearing of this application, the court entered up an order, reciting that it appeared that the home of deceased and the bulk of his property were in Rockwall county; that the applicant, Sally Catchings, lived with deceased at the time of his death, “and that the said applicant is in fact the real defendant in this case,” and directing the transfer of the administration to Rockwall county, “ as directed by law.”

On th§ 1st of March, 1873, was passed an act creating the county of Rockwall, directing its organization by commissioners. On June 2, 1873, another law was enacted, published with the special laws, directing the transfer from the District Court of Kaufman of all causes, civil and criminal, then pending in said court, “ in which the defendant resides in Rockwall county.” This seems to have been regarded by the court as authorizing its action; but we are unable to see how one who was applying for the revocation of letters of administration granted to another, and asking the order of removal of the case, could claim the privileges of a defendant. We have been cited to no other provision of the general law or the law regulating administrations giving the court authority to change the venue in cases like the present. The power to do so exists only in cases provided for by law. (Taylor v. Williams, 26 Tex., 585.) In cases of new counties being created, including the territory where the deceased had resided, the act of 1846 made it the duty of the County Court, upon the petition of the executor or administrator, or a majority of the heirs of any such estate, to transfer the administration. But even if still in force, which we will not now proceed to inquire, it does not affect the ease before us_. We must assume, in the absence of proof showing when Rockwall county was organized, that the court had jurisdiction to govern the letters. (Clark v. Goss, 12 Tex., 395; Burdett v. Silsbee, 15 Tex., 604.) If, in fact, the court had become satisfied that it had no jurisdiction, because Rock-wall county was organized before the application for letters was filed, it certainly failed to correct the original error by making an unauthorized order transferring the case to Rockwall county, instead of setting aside its whole proceedings.

The judgment is reversed and the case remanded.

Reversed and remanded.