Luther v. Graves

408 S.W.2d 242, 1966 Tex. App. LEXIS 2961

• Court: Court of Appeals of Texas
• Decided: October 7, 1966
• Docket: No. 16759
• Status: Published

Opinion

OPINION

RENFRO, Justice.

On December 13, 1961, Edna Elizabeth Graves, appellee, defendant below, was appointed Guardian of the person and estate of her mother, Amelia K. Luther, a non compos mentis. Mrs. Luther died February 21, 1964.

Claims paid by the guardian were approved by orders entered by the probate court during the guardianship, and on April 28, 1964, an order was entered approving the guardian’s account for final settlement.

Appellants, grandsons of Mrs. Luther, did not appeal from any of the probate orders approving claims.

By petition for writ of certiorari filed in District Court March 12, 1965, appellants, as petitioners, sought for the first time to challenge the orders approving claims paid by the guardian.

Judgment was rendered for the guardian, and petitioners appealed.

That the action of a probate court in approving a claim in guardianship proceedings cannot be carried to the District Court by certiorari has been established by a long line of cases. Such action must be done by direct appeal.

Some of the cases so holding are: De Cordova v. Rogers, 97 Tex. 60, 75 S.W. 16 (1903); Eastland v. Williams, 92 Tex. 113, 46 S.W. 32 (1898); Logan v. Gay, 99 Tex. 603, 90 S.W. 861; 99 Tex. 603, 92 S.W. 255 (1906); Jones v. Williams, 14 S.W.2d 300 (Tex.Civ.App., 1929, dism.); Bolton v. Baldwin, 57 S.W.2d 957 (Tex.Civ.App., 1933, dism.); Jones v. Silverman, 84 S.W.2d 1013 (Tex.Civ.App., 1935, no writ hist.); Wimberley v. Parish, 381 S.W.2d 135 (Tex.Civ.App., 1964, ref., n. r. e.).

There are some exceptions to the above rule, e. g., where the order entered by the probate court is void, or there is fraud, etc. The instant case does not fall within any of the exceptions.

Affirmed.