Turner v. Jackson

256 S.W.2d 127, 1953 Tex. App. LEXIS 2218

• Court: Court of Appeals of Texas
• Decided: January 23, 1953
• Docket: 2974
• Status: Published

Opinions

LONG, Justice.'

This is an appeal from a judgment of the District Court of Taylor County sustaining appellees’ plea in abatement to an action brought by appellants, George Turner, and the other heirs of Hattie Savage Turner, deceased, contesting the will of Hattie Savage Turner, executed in 1925. Appellants brought this action in the County Court of Taylor County, alleging as grounds for the contest that a later will executed by the deceased in 1940 revoked the will executed in 1925. Appellees alleged in their plea in abatement filed in the District Court that the District Court had no jurisdiction on appeal from the County Court for the reason that on the trial in the County Court appellants had requested that the court render judgment for appellees and at that time appellants introduced no evidence in support of their claim that Hattie Savage Turner, deceased, had executed a subsequent will, thereby revoking the will theretofore admitted to probate. The court sustained ap-pellees’ plea in abatement and dismissed the suit at appellants’ cost. From this judgment, appellants have appealed.

The trial court prepared and. caused! to be filed his findings of fact and conclusions of law in which it was found, on sufficient evidence,- that in the County Court, judgment was entered without the introduction of any evidence. It is undisputed that no evidence was introduced in said court. It is the settled law that where a contestant offers no evidence in an action in the County Court in support of grounds upon which he seeks to,have a will declared invalid, that contestant, thereby abandons his cause of action and an appeal therefrom will not lie. Bell v. Bell, Tex.Civ.App., 245 S.W.2d 767; Cannon v. Willis, Tex.Civ.App., 130 S.W.2d 920 (Writ Ref.); Sorrell v. Stone, 60 Tex.Civ.App. 51, 127 S.W. 300 (Writ Ref.); Scheetz v. Bader, Tex.Civ.App., 251 S.W.2d 427 (Writ Ref.).

Appellants contend the court erred in,admitting and considering any of the evidence offered upon the plea in abatement because the judgment of the County Court was the best evidence as to the proceedings in that court and any evidence offered at such hearing vitiated the parol evidence rule. The judgment of the County Court recites:

“That the parties appeared and submitted the matters in controversy as well as of fact and of law to the Court without the intervention of a jury, same having been waived and the pleadings and evidence and the argument of counsel having been heard and fully understood.”

We recognize the rule as contended by appellants that ordinarily judicial 'records are protected by the parol evidence rule and that their effect cannot be added to, subtracted from or altered by evidence that tends to contradict said records. In a proper case, however, the court has the power and will consider evidence dehors the record to ascertain whether it has acquired jurisdiction of an appeal. It cannot consider evidence aliunde contradicting the record. The evidence offered in the District Court to the effect that appellants did not offer evidence in the .County Court on the issue of a later will does not contradict the recitals in the judgment of the County Court that evidence was introduced in, the County Court. The County Court judgment does not recite the kind and character of evidence which was introduced on the hearing. It does not state that appellants introduced any evidence. We have concluded that the court did not err in admitting evidence aliunde the record on the issue of whether evidence was introduced in the County Court on the controlling issue made by the pleadings in that court. We find no merit in this appeal and the judgment of the trial court is, therefore, affirmed.