Bingham v. Waterhouse
Bingham v. Waterhouse
Opinion of the Court
Previous to the April term, 1861, of the Probate Court of Harris county, John W. Waterhouse had been appointed administrator pro tempore of the estate of M.
The probating the will was contested by George O. Bingham, who claimed to be a brother and heir of the deceased, and who had also filed his application for letters of administration of the deceased at a previous term of the court, and had been appointed as such administrator.
At the April term the Probate Court ordered and decreed that Jno. W. Waterhouse, the administrator pro tempore heretofore appointed, deliver over to the administrator in chief, George C. Bingham, all the property of said estate in his possession, including the slave girl Sarah, money and other effects.
From the foregoing order to deliver up the slave girl Sarah, and $500 of the money on hand, J. W. Waterhouse appealed and gave bond.
At the District Court this case came on for trial. Water-house appeared and filed a statement dismissing his appeal ; whereupon the court ordered the appeal to be dismissed at the cost of appellant.
From this judgment the administrator appeals to this court.
The question presented is: could the administrator pro tempore, against whom a judgment had been rendered in the County Court, and who had brought his case up to the District Court for revision, dismiss the same at his own volition ?
It must be recollected that the administrator, Bingham, was the party in the Probate Court who had caused Waterhouse, administrator pro tempore, to appear before the court and make a settlement. At that court he was ordered to deliver the property, as above stated. When the parties appeared in the District Court they occupied the same relative positions of plaintiff and defendant they did in the Probate Court, because the appeal was required to be tried da novo. (Art. 1460.)
He had the same right to dismiss or enter a nolle prosepiii in the case that he had in the Probate Court, and no other; and this right was the same that any defendant has in the District Court to dismiss the case from the docket..
The judgment of the District Court is reversed and remanded.
Reversed and remanded.
Reference
- Full Case Name
- G. C. Bingham, administrator v. J. W. Waterhouse
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- ■ 1—An administrator who occupied the attitude of defendant in proceedings in the Probate Court, and who, under Art. 1460 of Paschal’s Digest, had appealed to the District Court from the order of the Probate Court, had no right to appear in the District Court and dismiss his appeal; because, when the case reached the District Court it stood there for trial de novo, and the appellant occupied in that court the same attitude of a defendant that he did in the Probate Court, and as such was impotent to dismiss the case. It was error, therefore, for the District Court to dispose of the case by dismissing the appeal at the instance of such an appellant. 3—If by dismissing his appeal the appellant meant that he had no defense, then the District Court should have affirmed the judgment of the Probate Court, and should, also, in conformity with the provisions of Art. 1356 of Padchal’s Digest, Save entered against the appellant a judgment for fen per cent, per month on the value of the property, which the order • appealed from had required him to (deliver to the appellee.