Sing v. Somer , 129 S.W.2d 501 ( 1939 )

On Motion for Rehearing. In connection with all matters involved on rehearing, is included appellee's motion for certiorari, to bring up, as a part of the present record, the entries upon and the judgment of the probate court on the claim docket in this estate. The action of the county court, as entered on the claim docket, relative to appellee's secured claim, was not in evidence before the district court on appeal. The trial in the latter court was de novo, or an original hearing, Article 3702, R.S.; hence, evidence concerning probate records not before the district court in the trial "anew" cannot properly be considered as a part of the record here. 13 Tex.Jur., Decedents' Estates, p. 650, Sec. 64.

However, we have concluded that error is shown in our original opinion, in holding that a conflict appeared as regards the notation of the probate court on the outside cover of the Somer claim, and the order on the minutes classifying the same; also in giving controlling effect to the minute entry under the particular facts. Article 3520 of our Revised Statutes is familiar law, but must here be examined. It provides: "When the court has acted upon a claim, such action shall be entered upon the claim docket and the date thereof, and the judge shall also indorse upon such claim or annex thereto, a memorandum in writing, dated and signed by him officially, stating the action of the court upon such claim, whether approved or disapproved, or if approved in part and rejected in part, stating the amount approved, and also stating the classification of such claim." In compliance with the above Article, there was attached to and made a part of the Somer verified claim, first, the allowance and approval thereof by the temporary administratrix, as a matured, secured claim against the estate in question; secondly, the following action by the probate court: "This claim having been allowed by Albena Sing, Temporary Administratrix of the estate of Tom Fojtik, deceased, and duly presented to the court and entered upon the claim docket for a period of ten full days and having been examined by me and found to be correct, is hereby approved as a matured, secured claim against said estate, this the 28th day of May 1936. (Signed) Robert Ogden, Judge of the County Court, Dallas County, Texas."

As shown in our original opinion, the additional indorsement of Judge Ogden appeared on the outside cover of the same instrument: "Examined and approved for $913.73 as a 3rd-Sub-B Class Claim this 28th day of Mar 1936. (Signed) Robert Ogden, 84-410." These recitals, taken together, we believe comprehended the "memorandum in writing" referred to in the statute, "stating the action of the court on such claim", including his approval and classification. In the absence of evidence concerning the action of such court on the claim docket (of approval and classification), the above indorsements of the probate judge are controlling and have the force and effect of a final judgment; Article 3525, R.S. In fact, by the plain provision of Article 3520, the indorsement by the court on the claim itself is but a restatement of his judicial action on the absent claim docket.

But, appellant contends that the claim in question is not entitled to the benefits of Article 3515a, Subd. (b), § 1 by reason of an entire lack of pleading in support. It must be borne in mind that this is not an appeal from any judicial act of the probate court on the claim as of May 28, 1936; on the other hand, review is here sought (through the district court) from a judgment of the probate court of date May 5, 1937, disbursing funds in the hands of appellant administratrix. Her attack upon the former judgment, giving priority to appellee in the proceeds of the mortgaged property, would have presented a more serious question in a direct proceeding; i. e., an appeal. However, the issue of want of pleadings in appellee's verified claim to support the judgment of preference in the instant case, arises only collaterally and is not tenable, unless the 3rd Sub-B classification of the Somer claim is shown to be wholly void. "Where a court of general jurisdiction, in the exercise of its ordinary judicial functions, renders a judgment in a cause in which it has jurisdiction over the person of the defendant and the subject-matter of the controversy, such judgment is never void, no matter how erroneous it may appear, from the face of the record or otherwise, to be." Clayton v. Hurt, 88 Tex. 595, 598, 32 S.W. 876, 877; Dallas Joint Stock Land Bank of Dallas v. Forsyth (Sup.Ct. Adopted),130 Tex. 563, 109 S.W.2d 1046, 1047, 1050, 112 S.W.2d 173, discussing a final order of the probate court, similarly held: "Conversely, if that court had a right of decision in the matter, its judgment, though erroneous, is not void. In the latter case, the statute amply provides for relief against it by direct attack. The probate court, acting within its constitutional and statutory powers, is a court of general jurisdiction and when so acting its judgments are as immune from collateral attack as are those of the district court when acting within the powers conferred on it by law."

We also conclude that the recital on the outside cover of the claim under discussion, giving it the Sub-B classification of Article 3515a, does not conflict with the minute entry in Vol. 84, p. 410, Probate Court Minutes, which reads: "On this the 28th day of May A.D. 1936, came on to be examined the claim of Marcus Somer, against the above named estate for the sum of $913.73; and it appearing to the court that said claim is a just and true claim against said estate, and that same is in due form and unpaid said claim is here by approved as a third class claim against said estate and ordered paid in due course of administration." By reference to the recitals of the court on the outside cover of this claim, already quoted, same is followed by the figures "84-410", showing the book entry to be only an incomplete extension to the minutes of the court's action already indorsed on the claim itself. Therefore, upon further study of this record, it seems to us that the consistent intention of the probate court with regard to this claim, manifested by its judicial acts, was to give thereto a Sub-B classification, and its action in the matter, though possibly vulnerable to direct attack, is not here reviewable.

Appellee's motion for rehearing is accordingly granted, our former judgment of reversal and rendition set aside, and the judgment of the district court on the claims in question is in all respects affirmed.

Affirmed.