#### DUNAWAY v. EASTER et al.

No. 1798-7495.

Commission of Appeals of Texas, Section B.

June 7, 1939.

*287J. V. Patterson and C. T. Gettys, both of Decatur, for plaintiff in error.

Penn J. Jackson, of Cleburne, and W. C. Shults, of Decatur, for defendants in error.

TAYLOR, Commissioner.

J. 'W. Dunaway was appointed administrator of the estate of U. S. Dunaway by the county court of Wise county. The deceased died on April 14, 1938. The application of Dunaway for letters of administration was filed the 29th of October of the same year and was granted November 9th of that year. The inventory and ap-praisement filed and approved on the 16th day of November, 1936, lists as deceased’s separate property real estate of the appraised value of $2,515. It lists no community or personal property of any kind.

Two small' claims, one of D. E. Smith and one of J. E. Mara, aggregating $52.41, show to have been presented to and allowed by the administrator on November 12, 1936, and to have been approved by the county judge on December 5th following. The only other claim shown to have been approved by the probate court is that of the administrator himself for $2,400, which was sworn to by him on November 12, 1936, as being owned by himself, and as being the “amount due for board, washing, ironing and personal care’-’ furnished the deceased “by J. W. Dunaway and wife during the period of six years immediately preceding his death, * * *.” The probate court approved this claim on the same date that the others were approved, each by a separate order.

On February 5th, 1937, N. E. Easter, N. A. Hughes, Emma Hines, and husband, J. J. Hines and J. T. Jackson, residents of Johnson county, filed in the district court of Wise county their petition for certiorari to the county court against J. W. Duna-way, individually and as administrator. The petition alleged the granting of letters of administration to Dunaway, and that thereupon the estate of the deceased “was opened and such administration *is now pending** * *”; and further alleged the approval by the probate court of the three claims above referred to. (Italics ours). The errors alleged by the petition for certiorari to have been committed by the probate court are, among others, the opening of probate proceedings, alleged to be error because there were no debts against the estate and no “necessity existed or does exist for administration”; that Mrs. Easter was a sister of the deceased and the nearest of kin to him, and that if administration should be found to be necessary, then she should be appointed administrator; that the process for posting notice was not issued and served in the manner required by law in that the return on the process showed that it was returned by the officer one day after its issuance, and that it could not therefore have been posted for ten days; that the appointment of Dunaway and all subsequent proceedings were obtained by a fraud perpetrated by Dunaway upon Mrs. Easter and the other plaintiffs in that the probate court asked Dunaway’s counsel to notify Mrs. Easter’s counsel of the filing of Dunaway’s application and that they did not do so; that plaintiffs did not learn of the proceedings ’ in time to appeal therefrom and all such proceedings were void. The prayer of plaintiffs was that *all orders, judgments and decrees*of the county court *be cancell-ed and set aside;*and in the alternative that if it should be found that administration was necessary that Mrs. Easter be appointed administrator and for general and special relief.

The district court not only granted the application for certiorari but upon hearing cancelled and set ¿side the action of the probate court in approving Dunaway’s claim for $2,400 and substituted in lieu thereof its (the district court’s) action in establishing and approving his claim in the sum of $500. “All other orders” of the probate court, as appears from the district court judgment, were “affirmed and allow*288ed to stand as made in the county court * * including' the order granting letters of administration to Dunaway. The Court of Civil Appeals affirmed the judgment. 119 S.W.2d 421.

Clearly if the order of the probate court appointing Dunaway administrator was valid then the orders of that court approving the claims were final and not subject to review in the district court, except upon direct appeal, and the Court of Civil Appeals erred in affirming the judgment. Jones et al. v. Wynne et al., Tex.Com.App., 129 S.W.2d 286, not yet reported [in State reports].

It is correctly stated in the opinion of the Court of Civil Appeals that the judgment of the district court must be presumed to have been supported by the evidence since no statement of facts was filed.

It is settled that the. district court’s jurisdiction over probate proceedings had in the administration of the estate of deceased persons is appellate only. Jones et al. v. Wynne et al., supra; Id., Tex.Civ.App., 104 S.W.2d 141, 143, 2nd col. par. (1); Pierce v. Foreign Mission Board, Tex.Com.App., 235 S.W. 552; Johnson et al. v. Stalcup, Tex.Civ.App., 74 S.W.2d 751; Const. of 1876, art. 5, sec. 16, Vernon’s Ann.St.

It therefore follows that the district court erred in taking any action upon the petition for certiorari other than to dismiss it. It appears upon the face of the petition that administration of the estate was in process in the probate court at the time the petition was filed. It does not appear from the allegations of the petition, nor is it claimed by any of the parties, that the adjudication of any of the matters complained of were beyond the powers of the probate court. If there was no error in the order of that court appointing Duna-way administrator, as found by the district court, it became its duty to dismiss the petition and it erred in not so doing.

The judgment of the Court of Civil Appeals affirming the district court judgment is reversed and set aside, as is also the judgment of the district court; and judgment is here rendered dismissing the application of defendants in error for certio-rari from the district court to the county court.

Opinion adopted by the Supreme Court.