Battle v. Howard , 13 Tex. 345 ( 1855 )

Wheeler, J.

The only question presented by the record is, whether it was necessary for the plaintiff, an administrator, appealing from the judgment of the Probate Court, rendered against the estate he represents, to give an appeal bond. And we are of opinion it was not. We do not think the provisions of the statute, relied on in support of the judgment of the Court in this case, (Hart. Dig. Art. 1232,) was intended to apply to the case of an administrator or executor appealing from a judgment against the estate of his testator or intestate. That provision was designed, we think, to give the right and prescribe the mode of taking an appeal, by one personally interested in the estate, who, in the language of the provision, may “ consider himself aggrieved” by the judgment appealed from. This is the natural interpretation of the language of the provision. And moreover, since the Act of 1840, exempting executors and administrators, in all cases of appeal by them in their representative capacity, from the necessity of giving bond, (cited in Ennis & Reynolds v. Crump, 6 Tex. R. 34,) there has been no enactment, in terms imposing that necessity ; but on the contrary, whenever they have been expressly mentioned in connection with the exercise of the right, the exemption has been repeated. Nor in practice has an appeal bond ever been supposed to be necessary in such cases. On the contrary, it has been the constant practice of the District Courts' and of this Court to adjudicate cases appealed by administrators from the Probate to the. District Court without bond.

We deem it unnecessary to enter upon a critical examination and analysis of the several provisions of the law which have been referred to. It may suffice to dispose of this question, to say that we deem it not an unreasonable or a strained construction to hold, in furtherance of the right of appeal, that the Act “concerning proceedings in the District Court,” (Hart, Dig. Art. 804,) may embrace as well the proceedings necessary to enable that Court to acquire jurisdiction to try and determine causes, as proceeding to transfer causes from that to the Court of final resort; and consequently that the appellate jurisdiction of the Court may be maintained and exercised, and transmitted in this case, under the provision of Art. 804 of the Digest, without any infraction of the letter and spirit of the 24th Section of the General Provisions of the State Constitution.

Where an executor or administrator appeals in his own behalf from a judgment affecting him personally, he undoubtedly must give bond in like manner as any other person appealing from a judgment by which he conceives himself personally aggrieved. But where he appeals on behalf of the estate he represents, from a judgment rendered against him in his representative capacity, it is an act done within the scope of the trust reposed in him in that capacity, for the due exercise of which the bond he has previously been required to give to ensure the rightful performance of the trust, is a security, and the law does not require, or contemplate that he shall give an additional bond for every such act he may be required to perform, in the discharge of his duty to the estate he represents. In such a case he may appeal without bond. It is suggested, as an objection to an appeal without bond, from a judgment of the Probate Court, that the law makes no provision for giving notice of appeal in that Court. Such.a provision is not necessary to the exercise of the right of appeal. On general principles, he who would appeal from the judgment of any Court, must do so in open Court at the time when the judgment is procured, and the fact should appear in the proceedings in the case. This is all the notice which, in pratice, the law has been held to require in any case. In the present case, the administrator appealed from the judgment of the Probate Court, and the fact was entered of record. And we are of opinion that nothing further was necessary to give the District Court jurisdiction in this case, and that it was error to dismiss the appeal. The judgment is therefore reversed and the case remanded.

Reversed and remanded.