Pfeuffer v. Strumpel

Watts, J. Opinion by Owing to the fact that there is no as~ signment of errors in the record, the only thing for determination is as to whether there is any such error shown by the record as goes to the foundation of the plaintiff’s action. (Chevalier v. Whitaker, 8 Texas, 204; Ray v. Bremond, 22 Texas, 626; R. G. R. R. Co. v. Scanlan, 44 Texas, 649.) Under the probate law then in force, the clerk of the district court was authorized and empowered to appoint, in vacation, permanent as well as temporary administrators. And a temporary administrator, when appointed, continued to act as such until the appointment and qualification of a permanent administrator. In the event a contest arose before the clerk with respect to the appointment of a permanent administrator, the law, ipso facto, suspended his j>ower to act in the matter, and continued it over to be determined by the court. (General Laws 1873, pages 108 and 109.) When the contest arose between Boehme and Ludwig, as to the permanent administratorship of the estate of Victor Boehme, deceased, the clerk therefore had no power or authority over the matter, and the attempted appointment by him of the appellant as such permanent administrator, pending, that contest, was without authority of law, and conferred upon the appellant no right or authority to manage, control or interfere with the property of the -estate. By the allegations in the petition, it is shown that appellee has a large claim against the estate, secured by liens upon the mill property belonging to the same; that appellant had, without authority nf the law, entered upon and taken posesession of said mill property, and was operating it in such a way as to greatly endanger its destruction by fire, and would waste the property, and convert the revenues arising from it to his own use; and that in this way, by the wrongful and unauthorized acts of appellent, the security of appellee was in great danger of being destroyed. Ordinarily, where there is an administrator of an estate, the creditor will not be allowed to intermeddle with the matter, by injunction ■or otherwise, to protect the estate from waste or destruction, for the law imposes that duty upon the administrator, and a failure to discharge his duty in this respect renders him liable upon his official bond. But here it appears from the allegations in the petition that the temporary administratrix had virtually abandoned the es [415] tate, and was acquiescing in the unauthorized and wrongful use of the same by appellant. Besides, the district court bad original jurisdiction over the estate, and it had the power, and the law imposed upon it the duty, of protecting the estate, at least until a permanent administrator had been appointed and qualified. In our opinion, a good cause of action is shown by the allegations in the petition, and that there is no such error made manifest by the record as would require a reversal of the judgment. We conclude that the judgment ought to he affirmed. Report of Commissioners of Appeals examined, their opinion adopted and the judgment affirmed. Gould, O. J.