
    BEVERSDORFF v. DIENGER.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1911.
    On Motion for Rehearing, Jan. 17, 1912.)
    Wills (§ 367) — Probate—Appeal—Notice.
    Though Rev. St. 1895, art. 2255, permitting a person aggrieved by decision of the county court to appeal therefrom on compliance with provisions of that chapter, and article 2256 merely requiring filing of an appeal bond within 15 days, do not require a notice, the requirements of article 1387, relating to appeals for both district and county courts and requiring notice of appeal, are general, • and an appeal cannot be taken from the probate of a will by giving bond without notice.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 832; Dec. Dig. § 367.]
    Appeal from District Court, Kendall County; R. IT. Burney, Judge,
    Proceedings by Joe Dienger for the probate of tbe will of Johanna Uile, deceased. From a judgment admitting the will to probate, Mary Beversdorff appeals.
    Appeal dismissed.
    Carlos Bee, for; appellant. Cobbs, Talia-ferro & Cunningham, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No, Series & Rep’r Indexes
    
   FLY, J.

In the county court of Kendall county appellee sought to probate the will of Johanna Ulle, deceased, and obtain letters testamentary for himself. The probate of the will was contested by Mary Beversdorff, a daughter of Johanna Ulle. The will was probated by the county court; the judgment probating it being rendered on June 12, 1909. No exception was urged against the judgment, and no notice of appeal given. On June 23, 1909, an appeal was attempted by filing an appeal bond in the county court. In the district court, the appeal was dismissed, because no notice of appeal was given. The legality of that action is the sole question involved in this appeal.

In article 2255, Rev. St. 1895, it is provided: “Any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court, shall have the right to appeal therefrom to the district court of the county, upon complying with the provisions of this chapter.” In article 2256 it is provided that the appeal bond containing certain conditions shall be filed within 15 days after such decision, order, or decree shall have been rendered. It is the contention of appellant that, no notice being required by the terms of article 2255, none was necessary, and that, having filed her appeal bond within the statutory 15 days, the appeal was perfected. In article 1387, which provides a rule in cases of appeals for both district and county courts, notice of appeal is required, and that rule is general and applies to all cases appealed, unless in terms excepted from the provisions of the rule. No exception is made in probate cases appealed from the county court; the statute being silent merely as to notice of appeal. The general law of appeals as to notice would therefore apply to probate eases appealed from the county court to the district court. No reason can be assigned for relieving that class of cases from the rule. The statute has not afforded any such relief; its silence on the subject leaving the general rule in operation.

As far back as 1855, the Supreme Court of Texas, .while holding that no notice was required in the statute in regard to appeals in probate cases, held: “On general principles, he .who would appeal from the judgment of any court must do so in open court at the time when the judgment is procured, and the fact should appear in the proceedings in the case. This is all the notice which, in practice, the law has been held to require in any case. In the present case the administrator appealed from the judgment of the probate court and the fact was entered of record, and we are of opinion that nothing more was necessary to give the district court jurisdiction.” Battle v. Howard, 13 Tex. 348. In the case of Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486, the question under consideration was fully discussed and Battle v. Howard indorsed, and the decision to the contrary in Glenn v. Kimbrough, 70 Tex. 147, 8 S. W. 81, by the commission of appeals, overruled. Strong reasons are given for the holding in the Smithwick v. Kelly Case, and it was made in an appeal perfected from the probate court to the district court. The court said: “That notice should be thus given we have no doubt in the absence of a law requiring notice to be given in some other manner.” After referring to the decision in Glenn v. Kimbrough the court said: “We are, however, of opinion that the rule asserted in Battle v. Howard is the correct one, and persons who may not be able thus to give notice of appeal may have a judgment in probate revised in the district court on certiorari upon proper application and notice.” The case of Glenn v. Kimbrough has never been cited except in the one instance, when it was overruled, but the case of Smithwick v. Kelly was cited and approved in the case of Western Union Telegraph Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945.

The appeal is dismissed.

COBBS, J., did not participate in this decision.

On Motion for Rehearing.

FLY, J.

While the decision was made in a case of trespass to try title in Smithwick v. Kelly, heretofore cited, it was directly in regard to the absolute necessity of notice of appeal being given on appeal from a judgment in probate matters in the county court to the district court, and the Smithwick-Kelly Case has been approved by the Supreme Court in the case of Western Union Tel. Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945, in an opinion delivered by the then Chief Justice R. R. Gaines. In that case it was said: “Smithwick v. Kelly is also an authority in point. That case involved the validity of an appeal from the county to the district court in a probate proceeding. No notice of an appeal appeared in the transcript of the proceedings of the county court. Upon collateral attack, the judgment of the district court was held void for the want of such notice, although the recitals contained in it showed that the appellee had appeared and the case had been tried upon its merits.” These decisions are so plain that it is not necessary to discuss or construe them. The notice of appeal and the filing of an appeal bond within 15 days were absolutely necessary to give the district court jurisdiction. We could not decide differently without overruling decisions of the Supreme Court. The case of Glenn v. Kimbrough, 70 Tex. 147, 8 S. W. 81, relied on by appellant, has never been cited but once, so far as we know, by the Supreme Court, and that was in order to overrule it, or at least to adopt another and different rule.

The motion for rehearing is overruled.  