Opinion
No. 3718.
June 27, 1929. Rehearing Denied July 4, 1929.
Appeal from District Court, Rusk County; R. T. Brown, Judge.
Suit by Monnie B. Tannery and others against O. V. Pirtle and others. Judgment adverse to plaintiffs, and they appeal. Affirmed.
Having been appointed by the county court of Nacogdoches county guardian of the person and estate of Oscar Pirtle, a minor, appellee O. V. Pirtle, on March 20, 1911, qualified as such guardian by giving a bond in the sum of $2,000, with appellees J. L. Pirtle and J. H. Wallace as sureties. At the time of the appointment, the minor was about 11 years of age. He married appellant Monnie B. Tannery in 1918, when he was 18 years of age, and died in 1922, when he was 22 years of age, leaving his wife, said Monnie B., who afterward married appellant R. W. Tannery, and a son, also named Oscar, surviving him. At the time appellee O. V. Pirtle qualified as guardian as stated, the minor owned an undivided interest in 104 1/2 acres of land in Nacogdoches county. The land was sold by the guardian April 27, 1911, in obedience to an order made by said county court of Nacogdoches county. The part of the proceeds of the sale the minor was entitled to amounted to $326.50. This suit, commenced October 19, 1927, in the district court of Rusk county by said appellant Monnie B. Tannery, joined pro forma by her husband, R. W. Tannery, on her own behalf and on behalf of her son, Oscar, was against said appellee O. V. Pirtle as the principal and appellees J. L. Pirtle and J. H. Wallace as the sureties on said bond. It was to recover said $326.50 as proceeds of the sale of said land to which the minor was entitled, and interest thereon as damages, together amounting, it was alleged, to the sum of $1,566.56. The trial was to the court without a jury. It appeared from evidence that the guardian, having been duly cited to do so, on January 4, 1928, filed his final account in said county court of Nacogdoches, and that said county court on April 18, 1928, after notice of the filing of such account had been given as required by law, made an order as follows: "This day, April 18th, came on to be considered in the guardianship of * * * Oscar Pirtle the final account of O. V. Pirtle, guardian of said minor, filed in this court on the 4th day of January, 1928; and it appearing to the court that the guardian has complied with the law by giving due and legal notice as is required by law of the filing of said report for final settlement, the court proceeded to examine the said account, and there being no exceptions and objections thereto, and the evidence in support of and against the account, and having duly considered the same, find it to be fair, just and correct. It is therefore ordered by the court that the said final account be and the same is hereby approved, * * * and the undisputed evidence showing conclusively that the guardian O. V. Pirtle has settled and paid in full Oscar Pirtle, to his full satisfaction, the estate belonging to him previous to his death, and which settlement was duly acknowledged by him in the presence of and before disinterested witnesses; therefore the said O. V. Pirtle is hereby discharged from further liability to this court and said estate as to said minor, and is hereby finally discharged from further obligation in this cause as such guardian, and said guardianship is in all things finally closed; and said guardian, O. V. Pirtle, and his bondsmen, J. L. Pirtle and J. H. Wallace, are hereby fully discharged on said bond in this cause. It is so ordered, adjudged and decreed." The court concluded as a matter of law that the order of the county court of Nacogdoches county just set out above "was (quoting) a valid judgment on its face and could not be attacked in a collateral proceeding in the District Court of Rusk County." He concluded, further, that this suit "was a suit (quoting) attacking the validity of the judgment rendered in the County Court of Nacogdoches County and was therefore a collateral attack on that judgment." Thereupon the court rendered judgment that appellants take nothing by their suit, and in favor of appellees for costs.
R. T. Jones, of Henderson, for appellants.
C. L. Brachfield, of Henderson, for appellees.
The contention presented by the assignments in appellants' brief is that the trial court erred when he concluded the order of the county court of Nacogdoches county approving the guardian's final account and discharging him and his sureties was a valid one and conclusively established that appellants were not entitled to recover anything in their suit on the guardian's bond.
In support of the contention it is insisted that, when the ward died in 1922, said county court "lost jurisdiction (quoting from said brief) to even cast up the account between such guardian and his ward," and that the order in question therefore was void. It may be, after the ward died, the county court had power only to settle and close the guardianship; but, clearly, power to do that continued in said county court, and it was only exercising that power when it made the order in question. Section 16 of article 5 of the Constitution; articles 4102 and 4296, Rev.St. 1925; Timmins v. Bonner, 58 Tex. 554; Young v. Gray, 60 Tex. 541; Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S.W. 153; Alford v. Halbert, 74 Tex. 346, 12 S.W. 75; Easterline v. Bean (Tex.Civ.App.) 15 S.W.2d 734. The language of article 4296, cited above, is: "When the ward dies, * * * the guardianship shall be immediately settled and closed and the guardian discharged." In the Young-Gray Case, where it was held that, after the death of the ward, a county court was without power to partition and distribute his estate among those who claimed to be entitled to it, the Supreme Court said: "When the ward dies, the duties of the guardian are at an end, except, alone, for the purposes of paying claims theretofore approved, or making his final account, and obtaining as soon as he can, for his protection in the future, an order of final settlement and discharge."
In further support of their contention appellants insist that on the filing of their suit the district court of Rusk county acquired jurisdiction of the matter of the account between the ward and the guardian; and that, having acquired such jurisdiction, said court retained it to the exclusion of any right in said county court of Nacogdoches county to in any way interfere with the exercise thereof. We agree with appellants so far as their insistence is that the district court of Rusk county had a right to hear and determine their suit on the guardian's bond. That a district court has power to hear such a suit where the amount exceeds $500 is settled by decisions of the courts of this state. Carpenter v. Soloman (Tex.) 14 S.W. 1074; Kretzschmar v. Peschel (Tex.Civ.App.) 144 S.W. 1021; Timmins v. Bonner, 58 Tex. 554; Fort v. Fitts, 66 Tex. 593, 1 S.W. 563. We agree further that an accounting by the guardian in a county court is not an indispensable prerequisite to the exercise of such power by a district court. Fort v. Fitts, 66 Tex. 593, 1 S.W. 563; Eckford v. Knox, 67 Tex. 200, 2 S.W. 372; Surety Co. v. Hardwick (Tex.Civ.App.) 186 S.W. 804. But we do not agree that the pendency of appellants' suit deprived the county court of Nacogdoches county of the right and power it unquestionably had before the suit was commenced, as stated above, to pass on the guardian's account and to discharge the guardian. The pendency of appellants' suit in the district court on the guardian's bond could no more deprive the county court of jurisdiction it had to settle and close the guardianship than the pendency of the guardianship in the county court unclosed could deprive the district court of jurisdiction it had to hear and determine the suit on the guardian's bond.
As we see it, the question presented by the record is not one of jurisdiction, as appellants see it, but is one as to the effect of the judgment of the county court of Nacogdoches county when offered by all the parties and admitted as evidence at the trial of this cause in the district court of Rusk county. The rule is that a judgment of a probate court within its jurisdiction is presumed to have been regularly made and entered, and, until set aside in a proceeding commenced for the purpose in the court which rendered it, is conclusive of the matter it determines. Hornung v. Schramm, 22 Tex. Civ. App. 327, 54 S.W. 615, where the Court of Civil Appeals held, in a suit on a guardian's bond in a district court, that an order of a probate court determining the state of the account between the guardian and his ward was conclusive as to both the guardian and his sureties. Schaeffer v. Williams (Tex.Civ.App.) 208 S.W. 220, where the Court of Civil Appeals held that an order of a probate court, valid on its face, directing a guardian to sell his ward's land, was not subject to collateral attack; and see Nash v. Milburn, 25 Tex. 783, a case much like this one on its facts. Bradley v. Love, 60 Tex. 472; Murphy v. Sisters 43 Tex. Civ. App. 638, 97 S.W. 135; Paschal v. Hobby (Tex.Civ.App.) 296 S.W. 336; Stone v. Ellis (Tex.Civ.App.) 40 S.W. 1077; Moore v. Wooten (Tex.Com.App.) 280 S.W. 742; Farmer v. Saunders, 60 Tex. Civ. App. 197, 128 S.W. 941; Supply Co. v. Robbins (Tex.Com.App.) 206 S.W. 825; Hannon v. Henson (Tex.Com.App.) 15 S.W.2d 579; Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S.W. 153.
The county court of Nacogdoches county having had power to make an order like the one in question here, as we have determined, there being nothing in the record sent to this court showing that the power said county court had was not effectually invoked, and nothing showing that the order made was ever set aside, we feel bound to hold, contrary to appellants' contention, that the trial court did not err when he held that the order in question established, conclusively, that appellants did not have a right to recover as they sought to on the guardian's bond, and when he rendered judgment in appellees' favor.
The judgment is affirmed.