
    J. R. L. Timmins and Wife v. Bonner & Long.
    (Case No. 1512.)
    1. Jurisdiction.— The constitution does not confer on the county courts, sitting in probate, jurisdiction over a claim by the former ward against the sureties on a guardian’s bond, for which judgment had already been rendered against the former guardian.
    
      2. Same.— The district court alone had jurisdiction, and the legislature had no power to confer upon county courts, as courts of probate, any jurisdiction not conferred upon them by the constitution.
    3. Same.— If the court a quo had no jurisdiction, an appeal cannot be entertained, although the court to which the appeal has been taken may have original jurisdiction of the question. When such an appeal has been taken from a probate court, having no jurisdiction, to the district court, which would have had original jurisdiction, and from its judgment an appeal is taken to the supreme court, the case will be dismissed.
    4. Statutes construed.— Arts. 2695 and 2696 of the Revised Statutes construed
    Error from Cherokee. Tried below before the Hon. Peyton Edwards.
    The opinion states the case.
    
      M. Priest, for plaintiff in error.
    
      Whitaker ds Bonner, for defendant in error.
   Stayton, Associate Justice.

Timmins and wife having, by an action which originated in the probate court for Cherokee county, which ultimated in a judgment of this court, established a liability of $1,726.34 against L. H. Reed as the former guardian of the estate of Mrs. Timmins, for assets of her estate which came into the hands of Reed as her guardian, this suit was instituted in the probate court for Cherokee county against Bonner & Long as sureties upon the guardian’s bond made by Reed.

Over the objections of the defendants Bonner & Long, a trial was had, which resulted in a judgment against them for the sum found to be due by the guardian by the judgment of this court, for interest thereon, and for the costs of the suit against the guardian Reed. An appeal was prosecuted from that judgment to the district court, where a judgment was rendered against the sureties for $747, with interest thereon, and for costs of the probate court. From that judgment Timmins and wife prosecute a writ of error. Both parties assign errors.

In the probate court the defendants sought to have the cause transferred to the civil docket of the county court for trial, upon the ground that it was not a probate proceeding; this the probate court refused to do. In the district court the same motion was made, and the court made an order thereon as follows: “ Then came on to be heard the motion of the defendants filed herein to transfer this cause from the probate to the civil docket, and to proceed with said cause as a civil suit, and not as a probate proceeding, which motion having been heard and considered by the court, it is the opinion of the court that the law upon said motion is with the plaintiffs, and it is considered and adjudged by the court that said motion be and the same is overruled.”

The cross assignments of error present the question as to whether or not the -probate court had jurisdiction of this action upon the guardian’s bond; and lying as it does at the very foundation of this action, its decision becomes necessary.

It is claimed that arts. 2695 and 2696, B. S., confer power upon the probate court to hear and determine actions upon guardians’ bonds. These articles provide that:

“ Art. 2695. When a guardian who has been ordered by the court, upon final settlement, to deliver the estate to the ward or other person legally authorized to receive the same, or to pay any amount adjudged by the court to be due by him to the estate of his ■ward, and fails to obey such order, upon complaint in writing by the ward or other person legally entitled to receive such estate or money, the sureties upon the bond of such guardian shall be cited to appear at a regular term of the court and show cause why judgment should not be entered against them for the value of such estate, or for such money, together with ten per cent, damages on the same, and interest and costs.

“Art. 2696. Upon the hearing of the complaint provided for in the preceding article, if no good causq to the contrary be shown, the court shall render and enter judgment in favor of such complainant against the guardian and sureties upon his bond that have been cited, for the full value of the estate which said guardian has failed to deliver, and for the full amount of money which the guardian has been adjudged to be indebted to the estate, and for ten per cent, damages on the same, together with interest and all costs of the proceeding, and execution shall issue to enforce such judgment. It shall not be necessary, before rendering judgment against the guardian under this article, that he shall have been cited.”

These articles are broad enough in their terms to give to the probate court the power claimed for it by the appellants, and it becomes necessary to inquire whether, if such be the intent of the legislature as evidenced by these articles, the same be not in conflict with the provisions of the constitution by which judicial power is conferred upon the respective courts.

The sixteenth section of article Y of the constitution confers upon the county courts original jurisdiction of -three several and distinct .kinds:

1st. “ They shall have exclusive original jurisdiction in all civil cases where the matter in controversy shall exceed in value two hundred dollars, and not exceed five hundred dollars exclusive of interest, and concurrent jurisdiction with the district courts when the matter in controversy shall exceed five hundred dollars and not exceed one thousand dollars, exclusive of interest, but shall not have jurisdiction of suits for the recovery of land.”

2d. “The county courts shall have the general jurisdiction of a probate court. They shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and common drunkards, including the settlement, partition and distribution of estates of deceased persons, and to apprentice minors as provided by law.”

3d. “ The county court shall have original jurisdiction of all misdemeanors of which original jurisdiction is not given to the justice’s court, as the same are now'or may be hereafter prescribed by law, and when the fine to be imposed shall exceed two hundred dollars.”

The constitution, sec. 8, art. V, among other things, provides that “ The district court shall have original jurisdiction ... of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to five hundred dollars, exclusive of interest. . . . The district courts shall have appellate jurisdiction and general control in probate matters over the county court established in each county for appointing guardians, granting letters testamentary and of administration, for settling the accounts of executors, administrators and guardians, and for the transaction of business appertaining to estates, and original jurisdiction and general control over executors, administrators, guardians and minors, under such regulations as may be prescribed by the legislature.”

In so far as the constitution gives to any of the courts an exclusive jurisdiction over any subject matter, it is not within the power of the legislature to give that jurisdiction to another tribunal, in the absence of an express grant of such power to the legislature by the constitution.

The only grant of power of this character is to be found in sec. 22, art. Y, of the constitution, which provides that “ The legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change.”

This power extends only to civil and. criminal jurisdiction, and has no reference to probate jurisdiction.

In so far as the working of the civil and criminal jurisdiction conferred upon the county courts was concerned, we were entering upon, with us, a practically untrodden path; not so in regard to the probate jurisdiction conferred upon that court; for the constitution gave that to the tribunal which had long exercised it under statutes authorized by the constitution, which in their language and intent were almost if not identical with that found in the present constitution. Hence the power was given to the legislature so to adjust the civil and criminal jurisdiction of the county courts, from time to time, as experience might indicate the necessity for so doing; that a tribunal could be found at all times so organized that the civil and criminal business of the country might be properly transacted, even if the county courts were found to fail to accomplish the purposes for which they were created.

Ho power was given by the constitution to the legislature to enlarge or diminish the probate jurisdiction conferred upon the county courts, nor .to withdraw from the district or county courts any jurisdiction essentially civil in its nature, by conferring the same upon the probate branch of the county court’s jurisdiction.

The action now under consideration was treated and tried, both in the district and county courts, as a proceeding in probate, and unless such a procedure can be sustained under the provisions of the constitution, it can receive no aid from arts. 2695, 2696, B. S.

That an action might have been maintained upon the guardian’s bond executed by Beed and his sureties in the district court cannot be questioned. Francis v. Northcote, 6 Tex., 186.

Such an action would have been essentially a civil action, in no manner partaking of the character of a proceeding in probate, and the fact that the bond was executed as a security for the due performance of the duties of the guardian could not affect the character of the proceeding through which it must be enforced in the courts. The provisions of the constitution conferring probate jurisdiction upon the county courts being, in reference to the matters now under consideration, no broader than were they under the former law, and almost identical in language, a consideration of cases adjudicated under the former law will show the construction put upon that law by this court, and such construction the makers of the constitution are presumed to have had in view at the time of its adoption. Munson v. Hallowell, 26 Tex., 475.

In the case of Ingram v. Maynard, 6 Tex., 131, the facts were that the administrator resigned, as he might then do, on January 30, 1844, and on the 29th of August, 1848, he voluntarily appeared before the probate court and applied for a final settlement of his account, which resulted in a settlement on December 1, 1848, in which the probate court entered a decree against him for §1,021.69. Upon that decree a suit was subsequently instituted in the district court; and as a defense thereto, a demurrer to the petition, based upon the want of jurisdiction in the probate court to render the decree sued upon, was interposed. This was overruled, and this court upon appeal held:

1st. That after the resignation of the administrator (although his account seems by his subsequent action to have been unsettled at that time), he sustained to the estate “ no other relation than that of any other person between whom and the estate there were unsettled demands.”

2d. That the former fiduciary relation which had existed between the administrator and the estate did not affect in any respect their then existing rights.

3d. That if the administrator was indebted to the estate, “it matters not how that indebtedness originated, the remedy of the estate was by a suit against him in a jurisdiction other than the county court. The relation of the defendant to the estate of his former intestate cannot be distinguished, in principle, from that of a mere creditor or debtor to the estate. The county court, therefore, had no jurisdiction to adjudicate the matters in controversy between him and the estate, or to render the judgment in question.”

In the case of Francis v. Northcote, 6 Tex., 185, an administrator de bonis non brought an action in the probate court against a former administrator, asking a re-examination and re-statement of his accounts.

It did not appear in what manner the former administration had been terminated, but that it had terminated prior to the bringing of the action. There was a decree rendered against the former admintrator, from which he appealed to the district court, which gave judgment in his favor upon his demurrer to the jurisdiction of the probate court, which that court had overruled. In passing upon the question, Wheeler, Justice, said: “But we are not aware of any provision which gives that court (the probate court) authority to call to account an administrator whose office has terminated. Being a court whose powers are defined and limited by express law, its authority is restricted to the enumerated subjects. It cannot transcend the powers conferred by the constitution and laws enacted in pursuance of it. The adjudication of matters in controversy between the estate and the former administrator, whose office, as such, has been finally determined, is not within the powers conferred.. As respects the jurisdiction of the county court, the present cannot be distinguished in principle from the case of Maynard, Adm’r, v. Ingram, decided at the present term.”

After suggesting that the suit was brought in the county court under the belief, probably, that it was necessary in that court to establish a devastavit by the administrator before a suit could be maintained upon the administrator’s bond in the district court, the opinion proceeds: “ This, however, it is conceded, was not necessary; but the plaintiff might have sued in the district court upon the bond in the first instance; and, upon proper averments and proof, the powers of that court are ample to afford the appropriate redress. ... If the plaintiff must have sued, in the first instance, in the county court, to establish the defendant’s indebtedness, the adjudication of. his rights might have been subjected to almost interminable delays. From the county court an appeal may be taken to the district court, where the trial is de novo, and the whole subject might be again contested there. If successful in that court, the plaintiff .may be further delayed by an appeal to the supreme court. If the judgment be there affirmed, he must then resort to another suit in the district court before he can enforce his demand.....The powers of the district court are better adapted to the investigation and just decision of controversies like the present than those of the county court. And the section of the constitution we have quoted has conferred a jurisdiction commensurate with that object.” The opinion concludes: “We are of opinion that the suit was improperly brought in the county court; that the court did not err in its judgment dismissing the case.”

These decisions practically assert that, after the termination of an administration, however that termination may occur, the probate court has no power to render a decree against one who formerly held the fiduciary relation of administrator or executor, and the relation of a guardian in no way differs from that of an administrator or executor in reference to the jurisdictional question involved.

The case at bar goes further and seeks to maintain in the probate court, against sureties upon the guardian’s bond, an action upon that bond, after nearly four years have passed from the time their principal ceased to be guardian, and nearly seven years after the guardian had ceased to perform any act as guardian except the preservation of property, in consequence of an application for him to give a new bond which had been made by one of his sureties.

Mrs. Timmins was married on September 28, 1876, and from that time forward Reed ceased to be either the guardian of her person or estate as fully as though upon final settlement he had been discharged, had been removed for cause, or had died. Pasch. Dig., 6929; Act of August, 1876, General Laws, p. 178.

His relation to Mrs. Timmins after her marriage, in reference to tire estate which had formerly been in his hands, was that of debtor and creditor; and to enforce any right which she might have against him or his sureties, the sum claimed amounting to more than $1,000, a suit should have been brought against the principal and sureties upon the guardian’s bond in the district court for the proper county. '

Such an action would have been one at law, in which the defendants would have had the right to have all contested questions of fact tried by a jury; of this right they were deprived in the county court and in the district court by the course pursued.

Should a creditor of a ward’s estate attempt to maintain such a suit in the probate court, no one would assert the existence of juris,diction in that court to maintain such a suit. Wherein the present differs from such a suit it is difficult to see; they stand upon the same ground, at least in so far as sureties are concerned, for as against them, in either case, it is essentially a suit upon the bond; for their obligation arises from no other source, and the relationship between the parties in each case would be that of debtor and creditor.

The constitution has not conferred jurisdiction upon the probate courts over many matters affecting estates of decedents and wards, instances of which may be found exemplified in the following cases, in addition to those already noticed: Booth v. Todd, 8 Tex., 137; Martel v. Martel, 17 Tex., 396; Wadsworth v. Chick, 55 Tex., 243.

We hold that the constitution doss not confer upon the county courts, sitting in probate, the power to render a decree under the facts of this case; that the district court alone had jurisdiction over the matter, and that the legislature has no power to confer upon the county courts, as courts of probate, any jurisdiction not conferred upon them by the constitution.

The views expressed render it unnecessary to consider many of the questions presented by the assignments of error and briefs of counsel, and the only remaining question is as to the disposition now to be made of the case.

[Opinion delivered February 16, 1883.]

It has been settled by a line of decisions in this state, that, if the court a quo had no jurisdiction of a case, the appellate court can have none. Baker v. Chisholm, 3 Tex., 157; Able v. Bloomfield, 6 Tex., 263; Horan v. Wahrenberger, 9 Tex., 317; Davis v. Stewart, 4 Tex., 223.

In the last case named it was said: There was then no error in dismissing the appellant’s petition for want of jurisdiction. This ground being well taken, it could not be gotten over by an appeal to the district court, because if the court a quo has no jurisdiction, an appeal cannot be entertained, although the court to which the appeal has been taken may have original jurisdiction of the question.”

The judgment now in question was rendered by the district court upon appeal from the county court. To the same effect is- the case of Neil v. The State, 43 Tex., 92; and the practice has been in such cases brought to this court, to reverse the judgment if a judgment other than one of dismissal has been • rendered, and to dismiss the case (Neil v. The State, 43 Tex., 92; Wadsworth v. Chick, 55 Tex., 243; Roeser v. Bellmer, 7 Tex., 1), and such must be the action in this case.

The judgment is reversed and the cause is dismissed.

Reversed and dismissed.

Associate Justice West did not sit in this case.  