Davenport v. Hervey , 30 Tex. 308 ( 1867 )

Moore, C. J.

In January, 1851, the appellant, William Davenport and James McDaniel, by appointment from the county court of Harrison county, became the administrators of the estate of Thomas Murphy, deceased, and have since continued to act in that capacity. At the August term, 1859, of said court, their exhibit and ábcount of the condition of said estate, which had been previously filed, was presented to the court, on their application for a final settlement of their administration on said estate. Exceptions were filed to their account by McFall & Co., Done-gal! & Co., James W. Hervey, and J. A. Heard, purporting to act for the heirs and creditors of the estate. On the hearing of these exceptions and the examination of their account, as re-stated by the administrators, it was ordered by the court that the administrators should settle said estate upon the basis exhibited in their account as re-stated, from which it appeared that there were only assets in their hands sufficient to pay the general creditors seventy-two cents on the dollar of their claims against said estate. From this order of the county court the exceptors .to said account give notice of an appeal to the district court. But the appellee, James W. Hervey, alone perfected his appeal, by giving an appeal bond. On the hearing of this appeal in the district court, it was adjudged by the court that there were sufficient assets in the hands of the administrators to pay all of the debts of the estate, and the sum of $500 surplus, over and above the amount sufficient for the payment of said debt, for distribution among the heirs of said estate. And from this judgment William Davenport, one of the administrators, prosecutes this appeal.

The first ground upon which it is insisted the judgment of the district court should be reversed is, that that court had no jurisdiction to try the case, for the reason, as is said, that the appeal bond for the removal of the case into that court was not filed with the clerk of the county court within fifteen days after the order or decree of the county court from which the appeal was taken. The transcript does not show on what day of the August term of the county court its decree was made. We judicially know, however, that the term of the court for that month commenced on the 29th day of it. And it seems not improbable . tha? it must have been several days before a re-statement of the accounts could have been made by the administrators and the final action of the court had in the case. If so, the appeal bond, which was filed on the sixteenth of September, was given within the time prescribed by the statute. At all events, as this objection was not made in the district court, when the facts could have been easily shown, and it does not appear from the record before us that the district court had not jurisdiction, it must be held, in accordance with the uniform presumption in favor of the correctness of the action of that court when the contrary is not shown, that it did not wrongfully assume jurisdiction in the case.

Again, it is said the district court had no jurisdiction, because appellee, Hervey, the appellant from the judgment -of the county court, was a stranger to the record, was not aggrieved by the judgment, and had no interest in it. The statute authorizes any person who may consider himself aggrieved by the decision, order, decree, or judgment of the county court, to appeal to the district court, provided he shall, within fifteen days after such decree, order, or judgment, file with the clerk of the county court a bond for costs and damages. (Hart. Dig., Art. 1232.) To prosecute such appeal, the party making it must no doubt have an interest in the proceedings in which the decree or order is passed, which may be injuriously affected thereby. (Stevenson v. Schiver, 9 Gill & Johns., 324.) The practice in the ecclesiastical and admiralty courts, to which that in our county court is in many respects quite analogous, is for the party claiming the right to litigate to propound his interest in the matter in dispute. When any one seeks to become a party contestant, certainly justice demands that the opposite party may require him to declare his interest in the matter before he shall be compelled to enter into any litigation with him. (McRae v. Pegues, 4 Ala., 158.) In the case of Thompson v. Farr, 1 Spear, 93, it is said by Wardlaw, J.: “ This executor might have required that the persons who opposed his claim, after showing their interest, should have exhibited a formal allegation, containing at least the grounds of the opposition clearly specified; and after a decree in his favor he was not, upon appeal, bound to plead to any issue in the circuit court which was tendered by a person who was not a party before the ordinary, or which contained any question not decided by the ordinary. But after the executor, waiving his right to all preliminary inquiries, has pleaded to the issue, and the appeal has been decided against him, it is too late for him to object in the court of last resort that one of his adversaries had no interest in the subject-matter.” Many, if not most, of the orders of the county court are wholly ex parte, and the statute does not restrict the right of appeal to such parties as are before the court when the order is made, but secures it to any one interested who gives bond within fifteen days after the making of such order. But as the matter is heard de novo in the district court on the appeal, the executor or administrator might then, no doubt, require the appellant to propound his interest, and when this was done he might contest it if he saw fit. But if he failed to do this, it is certainly too late for him to object for the first time in this court that his adversary has no interest in the subject-matter. In this case, when the appellee and his associates filed their objection to the exhibit and account of the administrators for final settlement, they propounded their interest by the statement that they excepted to the account on behalf of the creditors and heirs of the estate. We cannot say that they were not interested in the estate in both of these characters. If their declaration of interest is not so clear and full as it might be, no objection was made to it by appellant. And certainly his own exhibits show that appellee had been, if he was not still, a .creditor of the estate. Nor do the vouchers filed by the appellant sustain the assertion made for him in this court, that appellee’s claims against the estate had all been paid in full.

It is also said that the appeal only authorized the district court to adjust and decree the amount which appellee was entitled to receive as a creditor. If this were correct, it would present no objection to.the judgment of the district court; for, as we have just said, appellee claimed to act in behalf of the heirs, as well as creditors, and as the decree of the county court did not determine who are the heirs, their being no funds, in its judgment, in the hands of the administrators for distribution among them, we cannot say that appellee may not be entitled to a share in the estate as an heir. Nor should the judgment of the district court be reversed if it appeared that appellee had no other interest in the estate than as a creditor. It is the order or decree of the county court, passing upon the exhibit and account of the administrators for final settlement, from which this appeal is prosecuted, in which the first and essential question is, to ascertain and fix the amount of assets in the hands of the administrators for distribution among the heirs and creditors of the estate. It is from this decree, and not from an order of the court relating simply to a matter in which no one but the party appealing is interested, that this appeal is taken. The question here is, what funds belonging to the estate are there in the hands of the administrators? In the correct determination of this inquiry all creditors are alike interested. The judgment of the district court, ascertaining that there is a larger amount of assets in the hands of the administrators than was found by the county court, inures to the benefit of all parties interested in such assets. When such decree of the county court is reversed on appeal, it is reversed as to all parties having a joint interest in it, as well as for those by whom it is prosecuted. (Hefflefinger v. George, 14 Tex., 569.)

The remaining objections to the judgment, which have been discussed by appellant’s counsel, go to its sufficiency and correctness, and not to the foundation of the action; and, as no assignment of errors has been made in the case, we are not called upon to consider them. The record shows that two days after the entry in the district court of notice of appeal, appellee gave appellant’s counsel notice that he would file the record in this court, and insist on a hearing of the case at the ensuing term of the court, then about commencing its session at this place. And the trans-script was filed in this court within less than forty days after the rendition of the judgment in the district court. The district clerk has omitted to make an indorsement on the transcript showing to whom it was delivered, or at whose instance he forwarded it to this court, if he acted as the agent of one of the parties in doing so, as has always been required by the rules of this court. It is not the duty of the clerk to forward transcripts to this court; and he

should not assume to do so unless authorized or requested by one or the other of the parties, or their attorney of record; and when che does so, he should invariably indorse upon the transcript at whose instance it has been forwarded. The failure to observe this rule-has become a matter of such frequent occurrence, as well as the occasion of so much embarrassment to the court, especially where cases are not followed here by counsel, that we are constrained to call direct attention to it, and to add, if it is not more strictly observed in future, we shall be compelled to enforce its obedience by striking from the docket all transcripts which have been filed without a strict compliance with it.

The appellant was certainly entitled to forty days from his appeal within which to assign errors in the court below; and if the transcript was filed in this court by appellee in less than that time, appellant could, nevertheless, have assigned errors in the court below; and on his filing a transcript within the time prescribed by law, the transcript filed by appellee would have been dismissed at his cost; or appellant might, after assigning errors, have had them certified to this court, and incorporated with .the transcript previously brought up by the appellee. It may be said that appellee, by bringing the transcript into this court before the expiration of the time given appellant to assign errors, has waived the right to insist on errors being assigned; or, at most, that he could only claim that he should be notified in this court of the errors relied on by appellant before the submission of the cause. It must be observed, that the statute upon this subject is mandatory and emphatic, and was evidently intended as well to enable this court to make a proper disposition of the cases brought before it, as for the protection of appellees and defendants in error. And we do not, therefore, feel called ;ipon to regard the mere submission of a case by the parties,, on briefs, as obviating an observance of this plain requirement of the law.

If, however, the matters discussed in the briefs had been properly assigned as error, we are not of opinion that they would have required a reversal of the judgment. It is very obvious that the leading vice in the. exhibit and account of the administrators, in the opinion of the judge below, to whom the case was submitted, was in the omission of the administrators to show the true amount which-had come to their hands by way of interest upon the debts due the estate, or the time when these debts were collected and claims against the estate were satisfied, so that a correct balance, in respect to the interest to be charged against the estate and credited in its favor, could be struck. As the exhibit and account of the administrators did not furnish the court with the facts necessary to enable it to make a critical and exact statement of their account with the estate, and especially as nearly all of the interest-bearing preferred claims against the estate were due to the appellant, Davenport, we see no objection to the rule by which the judge in "the court below was guided in striking a balance on the accounts, which was evidently to make the interest on the notes of the estate, after they were due, set off against the interest on the claims against it, and charge the balance, if any, to the appellant. While we do not intend to be understood to recognize this as the correct rule, in all cases, for the adjustment of administrators’ accounts, we mean to say, that if any injury has resulted from it to appellant, it is owing to his failure t'o bring the money of the estate promptly into court, when collected, that it might be distributed to the creditors by its order. And if there is any just ground why he should complain of the judgment, he has failed to present it by the present record, so that we could ascertain it or grant him adequate relief.

There is no error in the judgment, and it is therefore

Aeeirmed.