(concurring).
After carefully studying the record and the excellent briefs submitted by able counsel representing the opposing parties, it is my considered opinion that the writ of prohibition prayed for in this cause should be denied.
It is my considered judgment that the decision of the Supreme Court of Texas in the case of McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567, relied upon by respondents, is clearly controlling on the question in this case and is more authoritative than the cases of Richardson v. Lingo, Tex.Civ.App., 273 S.W.2d 119, wr. ref. n. r. e., and Robertson v. National Spiritualists’ Ass’n of United States of America, Tex.Civ.App., 25 S.W.2d 889, wr. dis., and the other cases relied on by relators. Chief Justice CHADICK in his majority opinion in this case discusses fully McDonald .v. Edwards, supra, and other numerous authorities in harmony therewith, relied upon by respondents, and in my opinion, Judge CHADICK also correctly analyzes the principal cases relied on by relators.
The writ of certiorari sought by respondents is a statutory writ an$i not a common law writ. The Supreme • Court in McDonald v. Edwards, supra, stated [137 Tex. 423, 153 S.W.2d 569] : “This Court has liberally construed the rights of the parties to invoke the jurisdiction of the district court in certiorari proceedings to review the orders of the probate court” (citing numerous authorities), and then quoting from Jirou v. Jirou, 104 Tex. 136, 135 S.W. 114, further stated: “It is true that the jurisdiction of the district court over the county court is appellate in its nature, but it may be exercised by a trial upon the facts of the case as well as by a revision of the record made in the lower court.” The Supreme Court in McDonald v. Edwards, supra, further stated:
“It is true that a certiorari proceeding in a probate matter is one of the *565methods of appeal provided by statute. At the same time, it is a direct proceeding. Clearly, under the holdings in Connell v. Chandler, supra; Reynolds v. Prestidge, supra; Jirou v. Jirou, supra; and Linch v. Broad, supra, the district court, in a certiorari proceeding, has power to exercise its appellate probate jurisdiction to annul a probate order and the deed executed by virtue of such order. The rule has been stated in 21 Tex.Jur., pp. 376 and 377, in the following language:
“ ‘The proceeding by certiorari is direct and it is in no sense a collateral attack. While it is appellate in its nature, it seems that the powers of the court in the trial and disposition of the matters in issue are not precisely the same as those of an appellate or revisory court.
“ 'The statute provides that the trial in the District Court shall be de novo, * * *. Accordingly it has been held that the District Court may neither affirm nor reverse the order of the County Court upon the record sent up; it must retry the case upon the merits as if it ■were an original suit.’
“In Linch v. Broad, supra (70 Tex. 92, 6 S.W. 754), it was said: ‘The proceeding by certiorari is a direct proceeding, and cannot be considered, in any sense, a collateral proceeding.’
“The pirisdiction of the district court was invoked by certiorari proceedings as authorized by the statutes. * * * The case shall be tried de novo, and the issues shall be confined to the grounds of error specified in the application for the writ." (Emphasis and interpolation added.)
The pronouncement of the Supreme Court of Texas in McDonald v. Edwards, supra, has not been overruled and, in my opinion, constitutes the best and paramount authority upon the question involved in the case at bar.
Chief Justice Chadick in the majority opinion in this case also cited the case of Zamora v. Garza, Tex.Civ.App., San Antonio, 117 S.W.2d 165, no writ history, opinion by Justice Slatton, later an Associate .Justice of the Texas Supreme Court. This case, while not as authoritative as the Supreme Court case of McDonald v. Edwards, supra, is very closely in point with the question here involved, is in complete harmony.with McDonald v. Edwards, supra, and in my opinion is an unusually well-reasoned case. In the case at bar respondents tried to appeal their probate case from the County Court to the District Court and get a de novo trial — they filed notice of appeal, and an appeal bond but failed to file in the District Court the transcript required by Rule 330a, Texas Rules of Civil Procedure, (and/or the original County Court papers) and consequently did not perfect their appeal — their appeal was consequently dismissed by the District Court, which judgment of dismissal was affirmed by this Court and writ of error was refused by the Supreme Court. Not ever having .had a de novo trial in the District Court, respondents in the case at bar have sought such a de novo trial in the District Court by the statutory writ of certiorari method, which proceeding was timely filed by respondents. The case at bar is a case where no de novo trial' on the merits has ever been had in the District Court in the matter. In the Zamora v. Garza case, supra, the plaintiff gave notice of appeal but did not perfect his appeal, and the plaintiff had never had a de novo trial on the merits in the District Court in the matter, and sought a de novo trial through the statutory certiorari method, as in the case at bar. We quote from the court’s opinion in Zamora v. Garza, supra, [117 S.W.2d 166] as follows:
“Under article 932, Revised Civil Statutes 1925, writ may issue from the District or County Court for the purpose of reviewing a case upon its merits. Some distinction has been made in this State as to the nature of *566this remedy as distinguished from an appeal. 9 Tex.Jur., § 2, p. 21. In the same text, in section 4, it is broadly stated that certiorari to correct the orders or judgments of the County Court in probate matters may be resorted to without first pursuing ■ the remedy by appeal or assigning any excuse for not taking an appeal, certi-orari and appeal being cumulative remedies. The cases cited seem to support the text.
“Taking the averments of appellant’s application for the writ as true, which we must, when tested by general demurrer, we are of the opinion that such application stated a good cause of action. Otherwise stated, if the averments of the application are true, the appellant, instead of appellee, was entitled to be appointed as administrator de bonis non of the estate of Romulo Garza, deceased. Friend v. Boren, 43 Tex.Civ.App. 33, 95 S.W. 711.
“The trial court seemed to be of the opinion that because appellant had given notice of appeal, but failed to perfect the same, that he was not entitled to the writ. The Friend Case, supra, seems to answer that contention. In that case it is said (95 S.W. at page 712) : ‘The petition was filed within the statutory period, and a failure to appeal from the order of the county court approving the final report and discharging appellant as administrator did not preclude the remedy by certi-orari, of which appellees seasonably availed themselves. Under our law the latter is as distinctly statutory, and hence legal as the former, and is not made dependent upon a showing of cause why the remedy of an appeal was not pursued.’
“The present case is not one where the appellant pursued his remedy of appeal and lost, he merely gave notice of appeal, but did not perfect the same-It is contended by the appellee, and seems to have been sustained by the trial court, that the appellant having failed to allege any injury to the estate, his petition did not state a cause of action for a review, upon the case of Schwind v. Goodman, Tex.Com.App., Section B, 221 S.W. 579.
“In that case Mr. Justice McClendon quoted from Cyc. as follows (page 580) : ‘If the error is manifest and substantial injury has been sustained, the writ should be allowed; but the court will not award the writ where the errors complained of are merely informal or technical, or where, although there is error in fact, substantial justice has been done, and no appreciable injury has resulted to the complaining party.’
“In the present case, if the appellant’s allegations in his application are true, he has been denied a statutory right to be appointed administrator de bonis non of the estate of Romulo Garza, deceased. Certainly, the denial of that right shows an ‘appreciable injury has resulted to (him) the complaining party.’
“For the erroneous action of the trial court in sustaining the general demurrer, the judgment must be reversed and remanded for trial. It is so ordered.”
I fully agree with Chief Justice CHADICK’S opinion in this cause and concur in the denial of the writ of prohibition sought by relators.
This was originally written to be the opinion of the Court, but since the majority of the Court has concluded that the writ should be denied, I file the same as my dissent in the case, with minor changes.