Pitts v. Thompson , 1934 Tex. App. LEXIS 482 ( 1934 )

BOND, Justice.

Appellee, Arch Thompson, in a suit instituted in the district court of Ellis county against appellants and one T. J. Frierson, was awarded judgment for the sum of $594, against T. J. Frierson and a foreclosure of a deed of trust lien on land jointly owned' by appellants and said Frierson; no money judgment was sought or rendered against appellants.

This appeal is predicated on the theory that the evidence does not support the judgment, and, in appellants’ brief, they assign, as fundamental error, the failure of the testimony to show that the cause of action is cognizable in the district court.

Appellee alleges that, on November 10,1927, Nancy Toney, the surviving wife of William Toney, executed and delivered to T. J. Frier-son four promissory notes in the sum of $125 each, with provisional clauses for interest and attorney’s fee, and a deed of trust on about 32 acres of land; that thereafter, Frierson transferred and assigned to appel-lee said notes and deed of trust; that Nancy Toney married Fin Robson on the 19th day of July, 1929, and on the-day of February, 1932, Nancy Toney died intestate in Ellis county, leaving surviving, as her sole heirs, her said husband, Fin Robson, a sister, Mary Pitts, and a half-brother, T. J. Frierson, and that the said heirs inherited said land, under the law of descent and distribution of this state, subject only to the said notes and deed of trust lien. Appellee further alleged that there was no administration pending on the estate of said Nancy Toney Robson and no necessity exists therefor, sought judgment for the principal amount of said notes, interest, and attorney fee, as against the assignor, Frierson, and for a foreclosure of the deed of trust lien as against all the joint owners of the land.

T. J. Frierson adopted appellee’s pleading and confessed judgment. Appellants pleaded a general denial, non est factum" as to the execution of the notes and deed of trust by Nancy Toney, and alleged that the land was the homestead of said Nancy Toney at the time of the alleged execution of the instruments, was the homestead of herself and husband after her marriage with Fin Robson, and has been the homestead of the surviving .husband since her death.

The trial of the case revolved around the plea of non est factum. On this issue appellants challenge the proof as being insufficient. The homestead feature is not presented for review, for the reason that Nancy Toney was a widow at the time of the alleged execution of the notes and deed of trust; thus, the existence of the homestead was not a hindrance to the execution of the instruments.

The only competent testimony bearing on the issue of the making of the instruments by Nancy Toney is that of appellee’s attorney, J. T. Spencer, a nonexpert witness, who testified that he knew the signature of Nancy Toney; that about two years before the suit was filed, she came to his office and, being advised that she denied the execution of the notes and deed of trust, had her to sign her name on a piece of paper, compared it then with the signatures on the disputed instruments, and from the comparison thus made, the witness determined then that she signed the notes and deed of trust; that his knowledge of her signature is based solely on the experiment of Nancy Toney writing her name the one time and comparing it with the signatures on the notes and deed of trust. He further testified that he had misplaced the piece of paper on which she had written her name.

The related testimony of the witness Spencer was, in our opinion, admissible on the issue involved. The experiment made in having Nancy Toney to write her name, and he in turn comparing it with the signatures in dispute, and from that determining the genuineness of the disputed signatures, goes to the weight of his testimony, and is addressed to the trial court for determination. A non-expert witness may testify as to the handwriting of another where he has seen him write, even though he has seen him write but once, and then only his name.' Cairrell v. Higgs, 1 Posey, Unrep. Cas. 56. Such testimony does not come under the rule governing comparative instruments, requiring the production of the instrument into court for inspection.

There was further testimony offered, tending to show that the signatures on the notes and deed of trust were the same as the signatures on the back of a check claimed to have been written by the same party; the signature on the check was not introduced in evidence, its genuineness was not admitted, nor was it established as being the signature of Nancy Toney, nor was the check and signature otherwise relevant to any 'issue in the case; thus, the testimony fails for the lack of sufficient predicate standard of comparison. It is an established rule in this state that, in order for a handwriting to be used as a standard of comparison, its genuineness must be admitted by the opposite party, or must be established by clear and undoubted proof; that is, either by direct evidence or by some equivalent evidence; and that the standard of comparison be admitted in evidence. 17 C. J. 697. Therefore, such testimony having for its basis the signatures on a check which was not admissible, and at ' least was not admitted in evidence, can have no force in establishing the signatures in dispute. However, the case was tried before the court, and there being sufficient competent testimony to sustain the judgment, we must assume that the trial court disregarded all irrelevant and incompetent testimony, and only accepted as true that which sustains its action.

Suits against heirs of a deceased, involving property inherited by them, are usually cognizable in the county court. Under the Constitution and laws of this state, the county court alone has jurisdiction of matters probate, and that the district court has only appellate jurisdiction and general control in probate matters over the county court. Constitution, art. 5, §§ 8, 16; Franks v. Chapman, 60 Tex. 46; Heath v. Layne, 62 Tex. 694. An exception to this rule, however, is that courts having jurisdiction of the subject-matter have original jurisdiction of suits 'involving estates of decedents, where there is no administration pending on the estate and no necessity therefor. To acquire jurisdiction in such courts, it is essential that the petition allege the exception and the proof must follow the allegation. In this case, appellee alleges that there was no administration pending on the estate of Nancy Ton-ey,. and that there is no necessity for such administration. The statement of facts shows that, the land involved here embraces the entire estate of the deceased, was the homestead of herself and husband at the time of her death, arid that the only indebtedness to which the estate could be subjected is that due appellee. Obviously, there was no necessity for administration, the homestead was not liable for the payment of any other debt, and, in the absence of the necessity therefor, the county court was not authorized to administer or acquire jurisdiction of the estate. It is true, there is no evidence showing that administration was or was not pending on the estate, and such issue was not presented by demurrer or pleadings, or raised in appellants’ motion for a new trial. The question is for the first time assigned in appellants’ brief as being fundamental error, in that, the statement of facts fails to show that an administration was not pending. In our opinion, circumstances forcibly lead to the conclusion that no administration was pending on the estate, as stated, the property was an undisputed homestead, and was not subject to be administered by the county court; thus, there was no necessity for an administration, and we are constrained to hold that the county court did not assume to take jurisdiction of an unnecessary matter. Be that as it may, the fact that there is no evidence to support a finding that an administration was not pending, to entitle appellant to present the question, apparent only in the statement of facts, renders it necessary that the error be properly brought to the attention and ruling of the trial court. Such essentials cannot be taken advantage of as presenting fundamental error to be raised for the first time in the Court of Civil Appeals. Such does not present an error apparent of record, which the court will be required to consider when a determination of the existence of the error necessitates an examination by the appellate court of the entire statement of facts.

Being of the opinion that the record presents no reversible error, judgment of the lower court is affirmed.

Affirmed.