The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1895-12-18

that 4 Judge be disqualified, the parties
can not waive the dlsqualification. C.S
Opinion BY Gaines. C. J.
CAApIH iEI FuRGUsoN ct al. VS..
70 try title. from Harris county, First
Iistrict-Afflrmed.
ihis Is an ordinary action of trcspass
to try title brought by plaintiff in error.
helrs OF James b. Murphy. against defend.
ant in error, the heirs Of one Ware who
pleaded not guilty. Defendants below
claimed under an administrative sale of
the interest OF Murphy. There was iudg.
iuent in tho trial court In favor of thu
plaintiffs in error, but the court of ctvil
appeals reversed this judgment and REM
aered Judgment for the defendants In
If the administration sal,. passad nm,
70 me certificate OF Murphy 70 John )
S!uhor INC judgment OF tue court of civil
appeals must be aIurmuu
l. II Is cOutondeu that tho probate court
i'uu no Jurisdiction OF the estate OF Atur-
HnS' anu that the entire administration
nt".eCu'llSS were for that reason VOID.
M mat Murphy VAS not at the time OF
ills ueath AN innabitant or rus.ueut of
harrisburg county, ana did not at th,.
V'Hlc administration was granted nor al
therein
jurisdiction is the power of a court TO
neap ana determine IL cause ana enforce
Ats decree.
There are classes OF cases over which n
court mas not. under the very law of It's
creation, any possible power, e. H. an
administration upon the estate of Il living
person, in such cases the entire proceed
lnss are Drum non Judice, the law raises
10 Prescriptions IN their support ami tnc
facts bringing any particular case within
one OF sucn classes may be established by
evidence dehurs tho record either IN "A
d gu , or collateral attack. for the purpose
OF destroying tho apparent binding force
Oh such proceedings This is upon the
principle that the court, being as Il matter
o. law without power to Investigate or
determine any question connected win
such matter, can not by a clear usurpa-
tioh OF power, preclude inquiry into the
iacts establishing such usurpauon and
the consequent nullity of It's proceedings
Asalh, there are classes of eases over
which the law has conferred upon the
court general judicial power, but It's right
20 20 eX g, such power in particular
proceedings urged, not upon the ground
that the case does not belong to one OF
no such state of facts existed or that no
such preliminary steps had been taken
as authorized the court TO exercise its
poMels IN the given case, G. S. where the
POWER OF a probate court to grant An adj
mlnlstration of an estate or TO make an
Qrdcr OF sale IN a pending administration
IS called in question ana the validity OF
its proceedings denied on the ground that
no Necessity therefor existed
Tho validity OF tho proceedings for want
of jurisdiction may be raised In this class
of cases. us in the olher. in either a di-
rect or collateral attack. on account, how
ever, of the legal Prescriptions INDUCED In
favor of the validity Of the proceedings
In this class the ultimate rights of the
parties. In case the attack is successful,
are In many instances entirely different IN
the two classes Matter dohors the record
VIII not he received to show the invalid
ity Of this class of proceedings.
We are of the opinion that the assign
ment under consideration Is not well
taken and that the probate court had
jurisdiction over the class of cases to
which Murphys estate belonged and that
this case belongs to tho second class Of
cases above discussed.
.. II is coutcnded that the courts below
erred in not holding the administration
void. because the application was made
for administration on three estates In one
petition and granted In one order.
3. This was a mere error In procedure.
which can not affect the valid.s Of the
proceedings In this collateral attack
The petition for administration IS silent
ms TO the existence NJ debts and the APP
nlication for the order Of sale has hcou
lost and its contents are not shown. In
such case 1t must be presumed vat
th" court has found the existence Of debts.
Opinion by Denman, j.