Wolnitzek v. Lewis
162 S.W. 963
Tex. App.
1913
Check Treatment

*1 n wоlnitzek: Tex.) 963 lewis v. per- 1911, permitting 804]; Railway 3631, Rep. v. Civ. St. Co. 298 McMahon, Rutledge Am. St. [10 appeal. son 159; App. 601, 26 W. Civ. S. Tex. cases, Appeal [Ed. and Note.—For other see 121, Railway Co., 123 Mo. v. Error, Dig. 947-952; Cent. § Dec. Railway 327]; Barry S. W. 1055 [27 W. S. 151.*] Rep. 62, Co., [14 98 Mo. Am. St. 11 S. W. Appeal See, also, . Court, Con 610].” way, T. O. R. Co. v. & from Austin Coun- N. District ty; App. 68, Roberts, Judge. Frank 44 Tex. Civ. Application by probate general master’s violation of the J. Lewis for the If the duty will, others in violation of Oscar Wolnitzek and reasonable rules not ‍‌​‌‌​​​​​​​‌​‌​‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​​​‌​‍judgment imposed proponent, From contested. сontestants a him acquiescence and them, master who no effort to enforce makes Bell, Angelo, Johnson, Jno. P. of San Math- abrogation rule, and hence is an of such Thompson, Bellville, aei & of and Atkinson charge negligence of furnishes nо basis for a Atkinson, Houston, appellants. & of inevitably against then it corollary violation lows as a Findings of Fact. master’s rules made servant of the Lewis, JENKINS, Appellee J. J. B. protection benefit of the servant turn and independent was joint named as executor negligence a of affords no basis for will of Wolnitzek Peterus Paulus master; particularly against it was since April wife, Wolnitzek, his Franeiska executed negligence per operate trains in se to application 6, ‍‌​‌‌​​​​​​​‌​‌​‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​​​‌​‍1903, yards speed appellant’s a in excess of six at probate of same. be miles an reason of which it cannot hour pleadings As pellants, final any way applied in con- the rule probate they flicts with the rule that habit or custom Nwill revoked will on by it had been in no as an instance be excuse subsequent they will, a doing negligence. that which the law itself declares probated, and also asked upon be *same Ry. G., Evan F. Go. v. C. & S. ob- undue influence sieh, 61 Tex. 3. taining the' will of assignments specifically All of error county judge county being of Austin either discussed herein overruled because appointed disqualified, Heslip Hon. J. R. present any not, opinion, in our re- do special judge try disposed error, versible or have “In was entered as follows: the Matter our conclusions those we have dis- Wolnitzek, and Franeiska Deceased. Paul No. 1461. cussed. County Court of Austin mentioned, County, Texas, February Term, error A. D. 1912. application the court below is and the cause is This came on to be heard the probate for another trial. remanded of J. B. Lewis to the will of Peterus Paulus of date sel, and Franeiska April appeared by 6, 1903, coun- and there came also Oscar and behalf, WOLNITZEK et al. al. in their own and in behalf v. LEWIS et minors, of by Alvin and Norma Austin. probate, attorneys, who 29, Oct. 1913. On Motion for opposition 10, Rehearing another 1913. Further Denied 7, bearing July 1910, instrument date Appeal — last will of Paul deceased. The (§ — Courts Bond Febson Payable. the first will herein mentioned to Whom probate proceedings their evidence after and hence parties reprеsenting were other timony. the fact that an to the disqualified bond was made will declined offer tes- who was appeared probate to the court a instead of special judge appointed place, April 1903, in his was and is dated instrument immaterial, special judge since the would be and Franeiska Wolnit- of Paul the last will “county judge,” held to be the to whom it was executing zek, and at the time of payable. disposing mind sound and were of Courts, ordered, memory. adjudged, de- 202.*] § will of date the said the cоurt creed April hereby ad- the same is be and — Appeal Ebrok Probate placed rec- ordered mitted to Appeal Right op Appeal. purporting ord, instrument Where sue July 7, Wolnitzek, dated brought will of be the 1910, but were made to a suit they alleged a will when is fur- admitted will to that B. Lewis that John ordered ther failure to offer independent hereby appointed as and he is prevent appeal- would not them from will; probate, under under Rev. executor Dig. & & Am. Series cases see same and seсtion ‍‌​‌‌​​​​​​​‌​‌​‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​​​‌​‍in Deo. *For other NUMBER *2 (Tex. 96 n REPORTER SOUTHWESTERN is further ordered Machemehl be and property neys law to deceased, orders, sufficient open county, amount of the record lowing of Austin Lewis, proponent filed an not that he tate, county judge sufficiently in in the case and Franciska tify moves the court to Oscar Wolnitzek and testants wit: First. fails to set judgment bond is not and is not as appeal Sehauerhammer, lants said that Second. Because missed, docket of this court.” fected ror court nied overruling defects in their dismissing The Appellants, The district court entered appraise this cause fact or required allowed required requires, motion be in all excepted, the Franciska filed a might prescribe, in the sum judge trying their trial motion: “To the Hon. District Court clerk. shows, county bond Tex.” proceed and this cause stricken from the do appeal new bond Tex. Wherefore district court administer the or either of them. the action in amount as County, conclusions (appellants herein) their describe the and file Because Paul and Franciska written conditioned as court by to out and describe appellees, within the appeal bond, and, court of Austin amend their Wolnitzek, deceased, the wholly give bond, herein be dismissed.” law. Fourth. Because Third: motion to tаke O. P. contestants, by of said Oscar and Alma of the Opinion. disposition did estate of gave of the not district court the case to this $500, bond; Appellants, having per- said by dismiss' which motion was de- of law'. .Thereupon things sustained, insufficient and we are appеllee Hellmuth, are Because following reasons, inventory time requested notice of the such terms joint appeal conditioned will aforesaid. account of amend said approved Now comes J. proponent hereby appointed and it is ordered file required by law, asking district court court of allowed did not court is ordered bond does To all of the in accordance er proper county, Tex., No will of Paul properly so far as filed the and also their attor- bond of said appeal the of Austin the assign somewhat to do so. brief rendered the bond that O. therein findings by law, all by fix the county appeal 1895, officer, appel- case, is prays L. A. bond. “that 2S3. iden- law. con- amount of and this has dis- fixed the the the the not еs- er- in to should in such defect it it. peal 1884. Our any held, appeal the And, cerned, in this act difficulty. in to payable such pealing Justice. fixing tained the upon payable amount of pellants the tendered no amount judge, county ates fixed said act dеclares the amount at a require deficient say (R. other defect ease had 4. we [1] so, appeals who is shown action of the court was issue was same; and, appeal case The If If subject, as above set bond besides the trial court we think was the cases 1. arts. 2255 loss trying was the and was not be fixed the judge bond that the amount to the if directly stated, to the should have the as to view of and he has emergency,” cured been grounds: arising objection act of had not been fixed to determine it amount of the amount of the bond necessary motion as the district court to which the give attention has bond had is to the first of the bond that who, the cause had been fixed by giving argument this, new bond that must be held that as to form or brief, county judge. amount, speсial presented it payable attempted county provision this defect. act of 1848 and 2256. fix such wrong in by bond second, appeal enforced construe the act of under this that “The August 9, when it should have if so tried the cause. to forth, still, we' think the to havе been requested judge, ‍‌​‌‌​​​​​​​‌​‌​‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​​​‌​‍First, did not err any though far as this no been previous legislation quash bond. in error. “in presents etc. judge.” requires not judge or hád there been to the and authorities Chief bond in such eases objection if the of the bond upon personal thаt the the one, new not been called the bond had with our conclusions of bond was omitted by been and as he It was not required Acts of uncertainty based. statute might such the should The act of 1909 enforcement to do so amount of the amount by Justice. substanсe, should had been fixed his successor. a more serious bond; amount to be county judge, the by trial court so appealed n * * Section 2 of Austin coun- reference to bond. fixed The appeal case is con it could not disqualified the the fact is interest amount of sustaining the Chief have See R. S. 1909, p. must bond the to cure fix the by county P. D. given cases gath- as to tried bond cited been been been was sus- cre not the the ap ap on of' JAIMES CO. & STEEL Tes.) IRON PEDEN that this referred to dismissing above the certified ground trial especially waived, that, reason sustained must be judgment of therefore form the basis contest- in this under the the trial court. question execution not call did ants the *3 were that we [2] 2. have concluded will holding, upon of Sor propositions, error in upon two affirmative Stone, rell v. W. influence, the execution Undue viz.: dismissed judg- should have been shown will. a ment court, reason that district no “the In the evidence offered their evi- mentioned first will herein dence appellant supra, Case, filed a mo Sorrell were after the thereby probate of a tion set aside the representing will cause, becoming plaintiff and we testimony.” to offer declined correctly case that held think it was the refusal of their con- abandonment of an amounted to test, support testimony to offer nothing from which to and there was plaintiff’s action was- an aban cause of SCO, Stone, Sorrell v. suit, donment of the therefore cited. and authorities there appel lie; but, in the instant would stated, reasons bring lants did not but brought by appellee suit affirmed. trial court is proper parties in a suit were cited as Affirmed. will. appellants allege contest true that the subsequent will, and Upon present a former term The stat no evidence to sustain'the of this we affirmed (article provides fol R. S. as ute dismissing appellants’ for trial court “Any person : consider himself lows the reasons order, any decision, decree or court from which said did was taken judgment shall have the appeal bond, not fix amount ‍‌​‌‌​​​​​​​‌​‌​‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​​​‌​‍right therefrom to the district apрellants, by offering and that evidence county, upon complying court -of the of Wolnitzek and as to upon will wife provisions chapter.” of this county court, the trial in the had aban- chapter referred to are doned their of action. the mоtion cause proper appeal appealing shall execute a rehearing for for counsel has filed inability or malse affidavit of decree of the to do so. The affidavit to the effect that fact that court in this casе was probate judge had not fixed the amount that the will offered should be considered., bond came to his Appellants admitted to expiration the time for before aggrieved by decree, in themselves dicated this spoke a new bond their notiсe of execut appellee, counsel for to him that appeal bond, stated ed an due form hold point this not be raised on would sufficient amount. court; orig- the district stated, For the reasons above the motion inally the district did raise rehearing granted, Of point, but that attention of the the trial court is and this cause is appellee being agree- counsel called to the proceedings remanded for further in accord- ment, that he opinion. he admitted had made such ance with this agreement, ground and erased that granted. of the Motion motion. Attached to the motion for rehear- is a certified of the motion to dis- originally filed, miss era- PEDEN IRON & STEEL CO. v. JAIMES. therein, sures which shows that first motion as An- read as fol- of Texas. San tonio. Dec. 1913. Motion for On lows : “Because said bond is not suf- ficient and the amount named (§§ 280, Master and Servant therein of this case or —In juries to Servant —Assumed Risk —Con (by) county judge presiding tributory Negligence Findings—Evi court of Austin coun- dence. injuries required by In an Tex., action to a evi- law.” That findingthat.рlaintiff dence held to sustain a following words the words “in amount” and guilty contributory negligence preceding the words “as law” not assume the risk. opinion original erased. our herein we see Master and clearly appear upon Servant, it did not 280, 281.*] the trial sustained the Injuries Master pre- Servant but we to Servant —Relation—Evidence. sumed that it was injuries action In an' to a probate judge had not fixed the amount of plaintiff’s employed he defendant, the same. It corroborated the affidavit another wit- *For Series & other oases &Am. section NUMBERin