Moore, Associate Justice.
We find a preliminary question in this case, which must be disposed of before consider-' ing those which go to the merits of the appeal.
On the 13th of January, 1873, the term of the court to-which the appeal was returnable, on application of appellants, supported by affidavits, an alternative writ of mandamus issued to the presiding judge before whom the case was tried in the court below, requiring him on or before the 1st day of April thereafter, to sign and certify a statement of the facts proved on the trial of said cause, and also to sign and certify the bill of exceptions taken by appellants to his ruling in reference to said statement of facts, at the next term of the eourt subsequent to that at which the case was tried, or show cause for his failure to do so.
In due time an answer under oath was made to this writ, and cause shown why it should not be made absolute. The [338]*338answer and affidavits accompanying it seemed quite sufficient for a discharge of' the writ, if, indeed, there had been any good ground for iti issuance in the first instance. But so far as the record shows, the writ was neither discharged nor made absolute, and no further action seems to have been taken in the matter.
The application, in om’ opinion, however, presents no sufficient cause for issuing the writ, and it should have been refused; for, taking the statements made by appellants’ counsel as entirely accurate in every particular, (though it cannot be controverted that there are manifest discrepancies in their recollection of the matters deposed to, and that of the respondent and the parties whose affidavits are filed with his answer,) and viewing them in the strongest possible light, they can amount to no more than that appellant has been deprived of the benefit of a statement of facts on this appeal, by the unnecessary and intentional wrongful adjournment of the court before there had been time within which the statement of facts could possibly have been prepared; and that the judge, for the purpose of depriving them of the benefit of their appeal, had refused, after the adjournment of the court, and also at its next term, to sign and certify a statement of facts, or to give them a bill of exceptions to his action in refusing to do so.
By the statute regulating proceedings in this court, it is enacted that the trial of all cases on appeal “ shall be on a statement of facts as agreed upon by the parties or their attorneys, certified to by the judge of the court below; or should the parties fail to agree, then the judge of the court below shall certify the facts; or on a bill of exceptions to the opinion of the judge; or on a special verdict; or on an error ■in law, either assigned or apparent on the face of the record; and in the absence of all these, the appeal shall be dismissed. (Paschal’s Dig., art. 1871.)
The statement of facts and bills of exceptions are required in plain and unambiguous language, as has been frequently [339]*339decided by the court, to be prepared and submitted to the judge and signed by him, and filed as a part of the record during the term of the court at which such bill was taken or when said cause was tried. (Paschal’s Dig., arts. 149 and 217-8-9.)
To enable this court to try the case on the statement of facts, bill of exceptions, &c., it is made the duty of the clerk of the District Court, immediately on an appeal being taken, to make out a full and perfect record of all the proceedings in such case. (Paschal’s Dig., art. 1494.) And it is the proceedings had in the cause, as shown by this transcript of the record, to which, evidently, we must look on trying the ea:e on the appeal, and not to proceedings had at a subsequent time, or to extraneous evidence showing that by the erroneous or even corrupt action of tire judge presiding on the trial, the proceedings upon which appellant would try the case in this court were not consummated in the court below, or the evidence of them was not authenticated in the manner directed by the statute, so as to become a part of the record. It may be urged that, if this is the case, a corrupt judge may effectually deprive a party of all chance to correct his erroneous rulings by appeal to this court. We think, however, that this is a mistake, and that a strict and vigilant observance of the statutes regulating the practice of the District .Court will be found amply sufficient to secure the rights of litigants, as well against corruption and a willful abuse of .power as unintentional error. If, however, they are not, the remedy must be supplied by the legislative department of the government, and not by an unauthorized extension by this court of its powers and jurisdiction.
If the judge before whom the case was tried had, in obedience tti the writ of mandamus, certified a statement of facts which had not been presented to the counsel for appellees during the term at which the case was tried, examined, and signed by the judge, or made out and signed by him, if counsel of the parties could not agree, and filed as a part of [340]*340the record of the term at which the case was tried, it could not be considered by us in determining the case on this appeal. It follows that the alternative writ of mandamus was improperly allowed, and must therefore be discharged at the cost of the appellants; and it is so ordered.
Though the case comes before us without a statement of facts or bill of exceptions, still, if there is error assigned or apparent on the face of the record, or the special verdict found by the jury does not warrant the judgment, it must be reversed. And we are clearly of the opinion that it will have to be reversed on both of these grounds.
1. It is the general practice of this court, in the absence of a statement of factsj not to review the rulings made during the progress of the trial, or the giving or refusing instructions to the jury. The errors of law to which, under such circumstances, we ordinarily look, are those which arise on the sufficiency of the petition or answer; and we will, in disposing of this branch of the case, confine ourselves to the assignment that the court erred in overruling the exceptions to the petition and amended petitions.
It would be impossible, without extending our opinion beyond all reasonable limits, to give a condensed statement or intelligent summary of appellee’s original and amended petitions, extending through many pages of this voluminous record. We will remark, however, that in the original petition all the proceedings had in the County and District Courts in administration of the estate of S. M. Frost, deceased, subsequent to the removal of W. E. Kendall as executor, are alleged to be absolutely null and void, because, as it is claimed-, said estate had been fully administered by said Kendall, and that therefore the court had no jurisdiction to grant administration de bonis non upon it. While in the amended petition it is sought merely to review and correct en masse the various and heterogeneous orders made by the court in the course of its administration, from the removal of Kendall up to the bringing of the suit.
[341]*341If we consider the case as made in the original petition— and it is upon this aspect of it the judgment of the District Court was rendered — it will be found that it is a suit by the appellees as heirs and distributees of said estate of S. M.
Free access — add to your briefcase to read the full text and ask questions with AI
Moore, Associate Justice.
We find a preliminary question in this case, which must be disposed of before consider-' ing those which go to the merits of the appeal.
On the 13th of January, 1873, the term of the court to-which the appeal was returnable, on application of appellants, supported by affidavits, an alternative writ of mandamus issued to the presiding judge before whom the case was tried in the court below, requiring him on or before the 1st day of April thereafter, to sign and certify a statement of the facts proved on the trial of said cause, and also to sign and certify the bill of exceptions taken by appellants to his ruling in reference to said statement of facts, at the next term of the eourt subsequent to that at which the case was tried, or show cause for his failure to do so.
In due time an answer under oath was made to this writ, and cause shown why it should not be made absolute. The [338]*338answer and affidavits accompanying it seemed quite sufficient for a discharge of' the writ, if, indeed, there had been any good ground for iti issuance in the first instance. But so far as the record shows, the writ was neither discharged nor made absolute, and no further action seems to have been taken in the matter.
The application, in om’ opinion, however, presents no sufficient cause for issuing the writ, and it should have been refused; for, taking the statements made by appellants’ counsel as entirely accurate in every particular, (though it cannot be controverted that there are manifest discrepancies in their recollection of the matters deposed to, and that of the respondent and the parties whose affidavits are filed with his answer,) and viewing them in the strongest possible light, they can amount to no more than that appellant has been deprived of the benefit of a statement of facts on this appeal, by the unnecessary and intentional wrongful adjournment of the court before there had been time within which the statement of facts could possibly have been prepared; and that the judge, for the purpose of depriving them of the benefit of their appeal, had refused, after the adjournment of the court, and also at its next term, to sign and certify a statement of facts, or to give them a bill of exceptions to his action in refusing to do so.
By the statute regulating proceedings in this court, it is enacted that the trial of all cases on appeal “ shall be on a statement of facts as agreed upon by the parties or their attorneys, certified to by the judge of the court below; or should the parties fail to agree, then the judge of the court below shall certify the facts; or on a bill of exceptions to the opinion of the judge; or on a special verdict; or on an error ■in law, either assigned or apparent on the face of the record; and in the absence of all these, the appeal shall be dismissed. (Paschal’s Dig., art. 1871.)
The statement of facts and bills of exceptions are required in plain and unambiguous language, as has been frequently [339]*339decided by the court, to be prepared and submitted to the judge and signed by him, and filed as a part of the record during the term of the court at which such bill was taken or when said cause was tried. (Paschal’s Dig., arts. 149 and 217-8-9.)
To enable this court to try the case on the statement of facts, bill of exceptions, &c., it is made the duty of the clerk of the District Court, immediately on an appeal being taken, to make out a full and perfect record of all the proceedings in such case. (Paschal’s Dig., art. 1494.) And it is the proceedings had in the cause, as shown by this transcript of the record, to which, evidently, we must look on trying the ea:e on the appeal, and not to proceedings had at a subsequent time, or to extraneous evidence showing that by the erroneous or even corrupt action of tire judge presiding on the trial, the proceedings upon which appellant would try the case in this court were not consummated in the court below, or the evidence of them was not authenticated in the manner directed by the statute, so as to become a part of the record. It may be urged that, if this is the case, a corrupt judge may effectually deprive a party of all chance to correct his erroneous rulings by appeal to this court. We think, however, that this is a mistake, and that a strict and vigilant observance of the statutes regulating the practice of the District .Court will be found amply sufficient to secure the rights of litigants, as well against corruption and a willful abuse of .power as unintentional error. If, however, they are not, the remedy must be supplied by the legislative department of the government, and not by an unauthorized extension by this court of its powers and jurisdiction.
If the judge before whom the case was tried had, in obedience tti the writ of mandamus, certified a statement of facts which had not been presented to the counsel for appellees during the term at which the case was tried, examined, and signed by the judge, or made out and signed by him, if counsel of the parties could not agree, and filed as a part of [340]*340the record of the term at which the case was tried, it could not be considered by us in determining the case on this appeal. It follows that the alternative writ of mandamus was improperly allowed, and must therefore be discharged at the cost of the appellants; and it is so ordered.
Though the case comes before us without a statement of facts or bill of exceptions, still, if there is error assigned or apparent on the face of the record, or the special verdict found by the jury does not warrant the judgment, it must be reversed. And we are clearly of the opinion that it will have to be reversed on both of these grounds.
1. It is the general practice of this court, in the absence of a statement of factsj not to review the rulings made during the progress of the trial, or the giving or refusing instructions to the jury. The errors of law to which, under such circumstances, we ordinarily look, are those which arise on the sufficiency of the petition or answer; and we will, in disposing of this branch of the case, confine ourselves to the assignment that the court erred in overruling the exceptions to the petition and amended petitions.
It would be impossible, without extending our opinion beyond all reasonable limits, to give a condensed statement or intelligent summary of appellee’s original and amended petitions, extending through many pages of this voluminous record. We will remark, however, that in the original petition all the proceedings had in the County and District Courts in administration of the estate of S. M. Frost, deceased, subsequent to the removal of W. E. Kendall as executor, are alleged to be absolutely null and void, because, as it is claimed-, said estate had been fully administered by said Kendall, and that therefore the court had no jurisdiction to grant administration de bonis non upon it. While in the amended petition it is sought merely to review and correct en masse the various and heterogeneous orders made by the court in the course of its administration, from the removal of Kendall up to the bringing of the suit.
[341]*341If we consider the case as made in the original petition— and it is upon this aspect of it the judgment of the District Court was rendered — it will be found that it is a suit by the appellees as heirs and distributees of said estate of S. M. Frost, deceased, against one of the parties, to whom it is alleged administration on said estate had been illegally granted, for damages; against other parties, who are now residents of Fort Bend county, to try title to a number of different tracts of land situated in various localities in the State; against others for the partition of the community estate of S. M. Frost, de ceased, and his first wife, Harriet Frost, deceased, and to recover from another defendant, by whom said estate was being administered, the property of the estate in his hands.
It is evident, we think, from this mere statement of the objects and purposes sought to be attained by the suit, that there is a misjoinder of parties and causes of action.
Hor, if we consider the case as presented in the amended petition, is it free from similar objections; nor does it in any respect pursue or conform to the statutory directions for revising proceedings of the County or District Court in matters of probate. (Paschal’s Dig., arts. 480, 1382, 1384, 5771:) And, taking the original and amended petitions together, they are not only objectionable because of multifariousness, but also because inconsistent and contradictory judgments are asked for against various parties having no joint or common interest in the matters to be litigated.
For these, as well as other grounds apparent upon the record, appellant’s general and special demurrer should have been sustained.
2. Will the special verdict of the jury support the judgment ?
On the trial of the case, the com!, at its, own instance, submitted to the jury eight special issues, and refused to submit all those which were proposed by appellants. Upon the verdict returned by the jury in response to the issues thus submitted, and without a general finding, the court decreed that [342]*342the County Com’t of Fort Bend county had no jurisdiction of said estate subsequent to June 27, 1867, the date of the removal of W. E. Kendall, the executor named in the will of S. M. Frost, and that all its orders thereafter were null and void. “Inasmuch,” says the court, “as the debts of said estate existing at the date of the death of S. M. Frost had been paid, except a small amount, and inasmuch as the personal property of said estate had been partitioned, and the real estate in Fort Bend county divided and delivered to the persons entitled thereto under said will, by virtue of a decree of said court, made at the October Term, 1866, and inasmuch as there appears to have been funds in the hands of the executor to pay the small debt to Baldwin & Williams.”
It might suffice to say, if the grounds upon which the court rests its judgment had been established by the verdict, they would not justify or warrant the conclusion that the-Probate Court had no jurisdiction to grant letters of administration upon said estate after Kendall’s removal. On the contrary, it would appear therefrom that said estate had not been fully settled and distributed among the parties entitled thereto. And whether it was absolutely essential that further administration should be had upon it, or whether it was for the interest of the heirs or'creditors that the administration should be longer continued, certainly it cannot be said that it was not within the power and jurisdiction of the court to grant letters of administration de bonis ñon to complete its full and final settlement.
An inspection of the special verdict of the jury will also show that it does not. warrant the deductions which the court has drawn from' it and oh which it renders its judgment. The jury find that at the close of W. E. Kendall’s administration of said estate it' owed á small amount to Baldwin & Williams. But they do not say that this was. the only debt existing at the daté of Frost’s death which • said estate still owed. The 'question' to which this response was made directly excludes from consideration'of the jury-debts which [343]*343may have been in suit at the removal of Kendall and subsequently established by judgment as valid claims against said estate. And while the jury find that there had been personal property, as well as lands situated in Fort Bend county, partitioned among the legatees,-they do not find that all the property belonging to the estate had been partitioned. If or was such a finding within the scope of the questions submitted to them by the court. And although they find that the estate was solvent at the time Kendall ceased to administer it, they do not find that there were funds in Ms hands with wMch to pay the debt of Baldwin & Williams; or if so, that he could have legally appropriated them to its payment after he had been removed as executor of the-estate.
It is also plainly manifest, from an examination of the several issues submitted to the jury, that they were altogether insufficient to elicit such a verdict as to authorize or warrant the judgment which -was rendered by the court. The. sole ground upon wMch it is claimed that the court did not have jurisdiction to grant administration de bonis non on the estate of Frost, after the removal of Kendall, is, that it had been fully administered. Yet the court refused to submit to the jury tMs precise issue, although asked by appellants; also whether the debts of said estate were all paid, and whether there were suits pending against it at that time. But it submitted to them the immaterial inquiry whether the estate owed Pettus anything when he was appointed administrator. And from other questions propounded, it evidently seemed to suppose, if the debts existing at the time of Frost’s death, which were not in litigation, had been paid, and a part of the property of the estate had been partitioned with the consent of the executor, tire Probate Court had no jurisdiction over the estate or power to grant letters of administration on it, notwithstanding the fact that smts were pending both for and against it, and that no final partition of the entire estate had or could be made until the conflicting rights and liabilities in regard to the matters then in litigation had been [344]*344settled and adjusted. It is needless to say that this was a mistake. Most of the issues submitted to the jury by the court were altogether immaterial, and in no way tended to elucidate or settle the matters in controversy between the parties or furnish the basis for a judgment. And upon the most vital and important of them the verdict of the jury is clearly in favor of appellants.
The judgment is reversed and the cause remanded.
Reversed and remanded.