The Constitution declares “that all courts shall be open,” and ' ‘every person shall have remedy by due course of Jaw,” and there*222by guarantees to each litigant the right to a trial of his cause, at the time as well as in form and manner fixed by due course of the law. To protect and secure him in this right, it is provided, in the act to organize District ■ Courts, of May 11, 1846, that “all suits in which answers are filed in due time shall be tried or disposed of in the order in which they stand on the docket or are filed, unless otherwise ordered by the court, with the consent of the parties or their attorneys.” This act, if it is treated as applicable to proceedings in the District Courts in matters of probate, certainly cannot be regarded as securing to any party interested, in every disputed fact in the settlement of estates and administrations, the right to the postponement of a trial until all causes or proceedings commenced at an earlier' date have been tried or disposed of. If parties are prepared for trial, certainly no injury is done them by the improper delay of some one else’s -case.
If a case is calléd up out of its order, and before it could reasonably be anticipated it would be reached, this might require its continuance or postponement until reached in its regular.order, or cause for delay obviated. If this was not so in respect to ordinary suits in proceedings such as this, where by motion it is sought to compel an administrator to comply with an order of the court which, from its very nature, the parties in whose favor it was made are entitled to have observed and obeyed at the earliest moment it may be properly' done, the administrator cannot certainly demand as á legal right that it shall be continued from term to term until all suits and proceedings brought before it was filed, which have not "been reached for want of time, are disposed of on the regular calls of the docket.
There was no error in the action of the court sustaining appellee’s exceptions to appellant’s answer. The allowance for the support -of the widow and child of the *223intestate, made by the court at a previous term, was a judgment which could not be questioned except by a direct proceeding for this purpose. (Pitner v. Flanagan, 17 Texas, 7; Gray v. McFarland, 29 Texas, 163.) Mor can this be done by an answer to an application to the District Court, in the exercise of its probate jurisdiction, for payment of a claim against an estate. (Smith v. Downs, decided at the present term.) Aside, however, from this, the allowance for the year’s support, given by the law to the widow, is not subject to the demand of creditors, and the appellant has no color of right to offset it by any claim which the estate of her deceased husband might be entitled to against'her separate estate. By the act of May 27, 1873, to amend the act of August 15, 1870, prescribing the mode of proceedings in the District Court in matters of probate, it is enacted, “ That in every question of disputed fact,. any party interested in the estate or administration shall, on demand, be entitled to a jury.” And if it appeared from the record that appellant relied upon, or brought to the attention of the court, this general denial of the matters alleged in appellee’s motion with a view to contest the same, and demanded a trial by jury, it may be a jury would have been allowed him, although all the facts which appellee was required thereby to establish in support of the motion may have been shown by the record. For if no funds had come into appellant’s hands with which he could have paid the amount allowed appellee by the order of the court, this would be matter of defense which he should have averred in his answer. The order of the court, the length of time which had elapsed, would, we think, in the absence of such denial, in connection with the fact that his annual returns, which are not before us, may have shown that he had funds in his hands, authorize the conclusion that appellant should be required to obey the order of the court.
The record, however, does not distinctly show that ap*224pellant demanded a jury, though it may be inferred from the bill of exceptions, by which it is shown, that one of his objections to the motion being taken up at the time was, that “the.matters involved were of such a character, as disclosed by pleas in defense, as to require the intervention of a jury,” and that the juries had been discharged. But this appears to have been when the motion was called up, and before the court had-sustained appellee’s exceptions to answers alleging the matters of fact, to which we think reference must have been intended in that part of the bill of exceptions to which we have referred. And as we cannot say that it clearly appears from the record, that after these exceptions were sustained, appellant either asked or desired a jury, we think subsequent matter set out in the bill strongly supports this conclusion, and also goes far to show that appellant did not, on the hearing, present to the court or rely upon his general denial. For without stating what proof was offered, or that any was offered on his part, he excepts to the “rulings of the court in the cause sustaining plaintiff’s exceptions to defendant’s answer, and awarding-judgment in favor of plaintiff for what she claimed without hearing proof of the matters in dispute, further than such as plaintiff saw fit to offer in support of her claim.”
Appellant’s exceptions to the motion do not appear from the record to have been brought to the attention of the court, and must, therefore, be regarded as having been abandoned. And although it is not clearly and artistically stated in the motion, that appellant had funds in hand with which to pay the amount ordered by the court, yet it is sufficiently so to sustain the judgment. And as there is no statement of facts in the record, we cannot conclude that the judgment Avas not sustained by the evidence.
The statute authorizes the judgment of the court order*225ing execution against appellant. (Paschal’s Digest, Art. 5691.)
There is no error in the judgment, and it is therefore affirmed.
Affirmed.