Opinion
Gene E. Steed, Perryton, for appellants.
Gordon, Gordon & Buzzard, Pampa, for appellee.
NORTHCUTT, Justice.
This is an appeal from a summary judgment entered by the District Court of Ochiltree County affirming an order of the county court which authorized and directed Kenneth Frantz, Guardian of the person and estate of C. J. Frantz, Sr. and Sarah F. Frantz, to perfect a settlement of certain pending litigations affecting the wards' estate.
Kenneth Frantz, as guardian of the person and estate of his father and mother, C. J. Frantz, Sr. and Sarah F. Frantz, brought suit in the county court seeking permission of the county court to settle a certain law suit in which the wards were interested. Two of the wards' children, Lewis Frantz and Marcena Elledge, contested the application of Kenneth Frantz for permission to settle such litigation. Judgment was entered by the county court authorizing and directing the guardian to execute the compromising settlement agreement. From the order of the county court approving and ordering execution of the compromise settlement agreement, Lewis Frantz and Marcena Elledge perfected appeal to the District Court of Ochiltree County.
Kenneth Frantz filed a motion for summary judgment in the district court. The district court entered summary judgment affirming the judgment of the county court and stating After hearing the argument of counsel and after examining the transcript he was of the opinion the motion for summary judgment should be granted. (Emphasis ours). From that judgment Lewis Frantz and Marcena Elledge perfected an appeal to the Court of Civil Appeals. The judgment was reversed and the cause remanded holding that the guardian did not discharge the burden of showing either the absence of a legally sufficient interest in appellants or of a material fact issue. Frantz v. Frantz, Tex.Civ.App., 389 S.W.2d 149 (N.R.E.).
Upon a retrial of the case in the district court Kenneth Frantz again filed his motion for summary judgment alleging that Lewis Frantz and Marcena Elledge did not have sufficient interest to entitle them to contest the proceedings in that they were not interested parties as defined by the Probate Code and alleging other matters; further alleging Lewis Frantz and Marcena Elledge had filed claims claiming to be the creditors of the estate; that said claims had been rejected and no suits were ever filed to establish their claims as required by Sec. 313 of the Probate Code, V.A.T.S. Lewis Frantz and Marcena Elledge answered that their claims were unliquidated and that it was not necessary for them to present the same as a prerequisite to sue the legal representative of the wards. Upon the trial a summary judgment was granted which stated in part as follows:
'On the 2nd day of November, 1965, came on to be heard the guardian's motion for summary judgment in the above entitled and numbered cause, and it appearing to the court that such motion was made in proper form and time and that proper service thereof was made and that the parties were properly before the court for a hearing thereon; And the court having considered the pleadings, the record, the evidence introduced at the hearing, the affidavits and the argument of counsel, finds that there is an absence of a genuine issue upon any material fact and that the guardian's motion for summary judgment should in all things be granted.' (Emphasis ours).
From that judgment Lewis Frantz and Marcena Elledge perfected this appeal and present their appeal upon four assignments of error and they will hereafter be referred to as appellants and the guardian as appellee.
By appellants' first assignment of error it is contended the district court erred in taking original jurisdiction over a probate matter which was never first originally considered by the county court sitting as a probate court. The record in this case shows that a judgment was entered in the County Court of Ochiltree County authorizing the appellee herein to settle and effect the compromise agreement and these appellants appealed the case to the district court for determination. A district court's function on appeal from probate courts is not to review but to try the case on its merits. Saros v. Strickland, Tex.Civ.App., 148 S.W.2d 865 (writ dism., judgm . correct). Appellants' first point of error is overruled.
By appellants' remaining assignments of error it is contended the court erred in granting summary judgment for the reason there were material fact issues in question and in failing to hear testimony to determine whether these appellants were grieved and interested parties within the meaning of Sec. 28 of the Probate Code and in assuming the appellants had no interest in the matter they alleged. The judgment of the district court recited, 'and the court having considered the pleadings, the record, the Evidence introduced at the hearing, the affidavits and the arguments of counsel find that there is an absence of genuine issue upon any material fact and that the guardian's motion for summary judgment should in all things be granted.' (Emphasis ours).
We do not have a statement of facts in this case. We are of the opinion, and so hold, that since the judgment of the trial court shows evidence was introduced and considered by the trial court it will be presumed in the absence of such evidence in the record that such evidence did not raise any genuine issue of material fact. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Brooks v. Large, Tex.Civ.App ., 388 S.W.2d 957 (N.R.E.) and the cases there cited.
Judgment of the trial court is affirmed.