Milo v. Nuske

WILLIAMS, Associate Justice. The Court of Civil Appeals for the First District certifies for decision the following case: “The appellants, having a claim against the estate of William Milo, deceased, which estate was being administered in the County Court of Waller County, presented said claim to the administrator, who allowed *244 same, and it was filed in the County Court on July 18, 1900, for approval by the county judge. Appellees, who are interested in said estate, filed a protest against the approval of said claim, and, upon a hearing by the county judge on the 4th day of October, 1900, the claim as to one of appellants was wholly rejected and was approved only in part in favor of the other appellants. On the 6th of October, 1900, appellants filed a motion for a new trial in the County Court, which motion was heard and overruled by the county judge on October 11, 1900. The appellants, at the time their motion for a new trial was overruled, gave notice of appeal to the District Court, and on the 26th day of October filed in the County Court their appeal bond conditioned as required by law, which bond was duly approved by the clerk of said County Court. The appellees filed a motion in the District Court to dismiss the appeal on the ground that the appeal bond not having been filed within fifteen days from the original entry of the order appealed from, was not filed within the time prescribed by law. This motion was sustained by the District Court and the appeal dismissed. “We respectfully certify for your decision the question as to whether or not, upon the facts above stated, the District Court erred in holding that the appeal bond was not filed within the time prescribed by the statute, and in dismissing the appeal.” Article 2255, Revised Statutes, provides: “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.” The party appealing is required by articles 2256 and 2258 to file his bond or affidavit within fifteen days “after such decision, etc., shall have been rendered.” Under former decisions of this court, it must be held that the time runs from the order to be appealed from and not from the order overruling motion for new trial. The statute allowing writs of error from the district court to the Court of Civil Appeals limits the right to twelve months “after the final judgment is rendered.” In Cooper v. Yoakum, 91 Texas, 392, the question was presented whether or not this time runs from the date of the main judgment or from the date of the order overruling motion for new trial, and it was held that the former date controlled. Quoting from Waterhouse v. Love, 23 Texas, 560, the court said: “The language is too plain to be mistaken. It bars the remedy at the expiration of two years from the rendition of judgment. The rendition of judgment is an independent fact, distinct from the adjournment of court, from other proceedings at the term, and in the same case; and it is from the happening of this fact that the two years are to be computed.” The language under construction in Cooper v. Yoakum was “final judgment,” and afforded better reason for the contention of appellant, that a judgment is not final until the close of the term and may be set aside or modified at any time during the term, and hence should not *245 "be considered the final disposition of the matter until refusal of new trial, than does the probate law, which makes the limitation upon the right of appeal from a decision, order, etc., begin to run from the time “such decision or order shall have been rendered.” Another difference between that case and this is that, in other proceedings, motions for new trials are expressly provided for and allowed as a matter of right, while no such provision is found in the probate law; but appeal with trial de novo in the district court is allowed. The time for appeals from the district and county courts and for writs of error to the courts of civil appeals is expressly fixed with reference to the date of orders overruling motions for new trials or for rehearing (Revised Statutes, articles 1387, 942), and this makes the absence of such provision from the statute construed in Cooper v. Yoakum and from that now in question more significant. The time for appeals from justice courts is made to run from the “date of judgment” (Revised Statutes, article 1670), but, by other provisions, the right is given to the parties to make motions for new trials and the duty is imposed on the justice to act upon them. Even under these provisions, the Court of Appeals first held that the limitation on the appeal ran from the date of the main judgment and not from the order upon motion for new trial (1 App. C. C., sec. 90, 1310), but finally adopted the view that the latter date governed. 2 App., C. C., 49, 110, 571; 3 Id., 100; 4 Id., 130. Whether or not the latter position is reconcilable with th_e decisions of this court above referred to we need not consider, since no provision for a new trial in probate matters is found in the statute. It is doubtless true that the probate court has power to alter its judgments during the term at which they are entered and that such power may be invoked by proper application from interested parties; but, in the absence of a statute, so providing, this can not be held to modify the fixed and certain rule of the statute prescribing the time within which appeals must be perfected. The power referred to may be exercised at any time during the term, and, as there is no statute prescribing a period of time within which a party may invite such action, it would follow that he may do so when he chooses so long as the term lasts; and if the rule contended for were allowed, the time for perfecting an appeal could be protracted at his will. This would leave no certain rule upon the subject, and, when it is considered that many persons may be aggrieved by an order made in an estate, any one of whom may ask the court to review and change it and may take an appeal from it, it becomes obvious that no such uncertainty was intended. If parties desire to ask a revision by the court of its own order and also to appeal from it, they can do both, but must still comply with the statute. It may be that an application to set aside an order might be based upon such grounds that an appeal would lie from a judgment refusing it, but such is not the case presented. The effort is to appeal from the original order after the overruling of an ordinary motion for a new trial, *246 seeking merely the revision of the judgment of the court already pronounced. Such at least we understand to be the case. . We answer that the District Court did not err in holding that the bond was not filed in time and dismissing the appeal.