With that Rule in mind, on examination of the opinion, it is found in 273 S.W.2d at page 121 of the reported case that a part of the Court's statement of the case was: Comstock v. Lomax, Tex.Civ.App., 135 S.W. 185; Johnson v. Coit, Tex.Civ.App., 48 S.W.2d 397; Dunaway v. Easter, Tex.Com.App., 133 Tex. 309, 129 S.W.2d 286; Clopper v. Hutcheson, 16 Tex. Civ. App. 157, 40 S.W. 604; State v. De Silva, 105 Tex. 95, 145 S.W. 330; George v. First Nat. Bank of Tulia, Tex.Civ.App., 67 S.W.2d 324; Hayden v. Middleton, Tex.Civ.App., 135 S.W.2d 281; Lafleaur v. Switzer, Tex.Civ.App., 109 S.W.2d 239; Schwind v. Goodman, Tex.Com.App., 221 S.W. 579. "An examination of the appellants' application for writ of certiorari * * * fails to reveal an allegation wherein they have alleged that the lower Court committed any error, nor does such application 'distinctly set forth any errors' in the orders of the Probate Court of which appellants complain. * * *
oods, showing conclusively that he was not the head of a family in any sense, nor the surviving husband of a deceased wife, at the time he became indebted to appellee on July 3, 1919, nor at any time thereafter, nor at the time of his making the pretended deed to the 228 acres of land to his daughter in March, 1920, before the maturity of his debt to appellee, and further showing that he was not and had not been the head of a family either actual or constructive in any sense for ten years or more preceding said transactions, appellant had no homestead exemption claim to the 104.3 acres of land or any part thereof at the time of the pretended sale of same to his daughter nor at any time thereafter, and the court having found that said sale was without consideration deemed valuable in law, said land was and is subject to appellee's execution for its debt against said appellant. First National Bank v. Sokolski, 131 S.W. 818; Bahn v. Starcke, 34 S.W. 103; Comstock v. Lomax, 110 S.W. 762; Comstock v. Lomax, 135 S.W. 185; Stevens v. Cobern, 213 S.W. 925; Davis v. Cuthbertson, 45 S.W. 426; Blum v. Gaines, 57 Tex. 121; Skinner v. Walker, 34 S.W. 233 (Ky.). When a homestead is acquired during the existence of the marriage relation, upon the death of either spouse, the homestead exemption is continued during the life of the survivor, although occupied by such spouse alone.
The interest which will disqualify a judge, must be direct and immediate, and not contingent and remote. Gerlach Mercantile Co., v. Hughes-Bozarth-Anderson Co., 189 S.W. 784; Patterson v. Seeton, 19 Texas Civ. App. 480[ 19 Tex. Civ. App. 480], 47 S.W. 733; Hobbs v. Campbell, 79 Tex. 360, 15 S.W. 282; Comstock v. Lomax, 135 S.W. 185. The issuance and service of a citation is a prerogative to compelling a defendant answering to a cause of action, but if answer is filed, after the service of an imperfect citation or without any citation being issued or served at all, the defendant is in court for all purposes.
He states that Mr. Snedeker 'is on this date reappointed as attorney * * *.' This order was made on August 7, 1961, and in our opinion that is the date on which Mr. Snedeker was validly appointed as attorney 'to represent the Special Water Master.' Younger v. McCoy, Tex.Civ.App., 53 S.W.2d 165; Comstock v. Lomax, Tex.Civ.App., 135 S.W. 185. We accordingly affirm the judgment.
In a certiorari proceeding, such as this is, an order confirming an administrator's sale will not be set aside unless the irregularities charged actually resulted in substantial injury to the estate. See: Comstock v. Lomax, Tex.Civ.App., 135 S.W. 185, at page 187; Lomax v. Comstock, 50 Tex. Civ. App. 340 [ 50 Tex. Civ. App. 340], 110 S.W. 762; Kendrick v. Wheeler, 85 Tex. 247, at page 253, 20 S.W. 44; Fitzwilliams v. Davie, 18 Tex. Civ. App. 81, 43 S.W. 840, at pages 842-843; Schwind v. Goodman, Tex.Com.App., 221 S.W. 579; Thomas v. Pure Oil Co., Tex.Civ.App., 297 S.W. 776; George v. First National Bank of Tulia, Tex.Civ.App., 67 S.W.2d 324; Pure Oil Co., v. Clark, Tex.Com.App., 56 S.W.2d 853 (Hdn. 3). Plaintiffs' other points of error have been considered but are overruled.
No error was committed by the trial court in admitting in evidence deeds and transfers from W. O. Sauermann to Helen J. Sauermann, executed subsequent to the date of the execution of the will dated March 26, 1934, for the purpose of showing the value of the estate of W. O. Sauermann at the time of his death, in order to enable the jury to determine whether or not the plaintiff had sustained an injury from the refusal of the court to allow said will to be probated. Robertson v. National Spiritualists' Association, Tex. Civ. App. 25 S.W.2d 889; Comstock v. Lomax et al., Tex. Civ. App. 135 S.W. 185. For the reasons above stated, the judgment of the district court is affirmed.
As Judge Coe was disqualified herein, of course, all orders made by him were absolutely void. But Judge Boyd had the power, as a matter of original jurisdiction, to make all the orders in issue and therefore, under Comstock v. Lomax (Tex.Civ.App.) 135 S.W. 185, to ratify and confirm Judge Coe's orders. Appellants do not deny the power of the district judge to enter an order of confirmation where the previous orders were made by a disqualified judge, as was Judge Coe in this case, but their insistence is that the order of confirmation and ratification must be made within the two-year period provided by article 932, or within a reasonable time after the expiration of that two years.
(2) That in order for appellant to have established his right to recover against appellee, it was incumbent upon him to allege and prove facts sufficient to show: (a) That appellee would have been entitled, as against the judgment of the county court refusing to probate said instrument, to the writ of certiorari to have reviewed said judgment — facts from which it would have appeared that such proceedings were void or that some substantial wrong and injustice to the estate of John L. Jackson had been done. (b) That but for the compromise settlement made, terminating the proceedings for the probate of said instrument, same would have been finally probated as the last will and testament of said Jackson. This holding is in accord with the following rule of law announced by Chief Justice James in the case of Comstock v. Lomax et al. (Tex.Civ.App.) 135 S.W. 185, 186, viz.: "The writ of certiorari to annul proceedings of the county court in probate matters is not a writ of right in the sense that the proceeding will be revised for errors as on appeal.
The allegations in appellants' application for writ of certiorari state in general terms that in February, March, April, May, and June, 1921, the land was very valuable, that the lease was valuable, and that the royalty was valuable, but said petition does not state that same could have been sold or leased for any better prices at that time, and does not allege any sufficient facts to authorize the court to set aside the sale of the royalty and the lease by reason of inadequate prices. Clopper v. Hutcheson, 16 Tex. Civ. App. 157, 40 S.W. 604; Comstock v. Lomax (Tex.Civ.App.) 135 S.W. 185. It appears from the record that the interest of the minors was five-sevenths of a one-sixteenth interest in two tracts of land, one consisting of 33 and the other of 66 acres, and that the guardianship proceedings were instituted in order that said land might be handled in the development of the oil, and with the exception of a few irregularities it appears that the proceedings in the guardianship matters were in strict compliance in every detail with the statutes.
So appellant and these two minor children constituted a family, entitled to the homestead exemption as long as such family continued, and no longer. Bahn v. Starcke, 89 Tex. 203, 34 S.W. 103, 59 Am.St.Rep. 40; First Nat. Bank v. Sokolski, 62 Tex. Civ. App. 324, 131 S.W. 818; Comstock v. Lomax (Tex.Civ.App.) 135 S.W. 185; Lomax v. Comstock, 50 Tex. Civ. App. 348, 110 S.W. 762; Davis v. Cuthbertson et al. (Tex.Civ.App.) 45 S.W. 426; Blum v. Gaines, 57 Tex. 121. More than ten years before appellant executed the note to appellee bank, and before said note was reduced to judgment and execution issued thereon and levied upon said 214 acres of land, appellants' said children had ceased to live with him and had married and established homes of their own in Oklahoma, and all of said land had ceased to be exempt and became subject to sale under execution.