(dissenting).
*567This is an original proceeding for a Writ of Prohibition to prohibit Frank Clayton and several others from prosecuting an attempted appeal by way of cer-tiorari from a judgment of the County Court to the District Court of Gregg County, Texas. A history of the case is necessary.
Matilda C. Clayton died in Gregg County, Texas, on December 26, 1955. On January 4, 1956, one Rufus Williams filed an instrument for probate in the County Court of Gregg County, Texas, purporting to be the last will and testament of Matilda C. Clayton in which he, Rufus Williams, was appointed independent executor without bond. The purported will was dated July 22, 1952. The petition for probate was entered upon the docket of the Probate Court of Gregg County, Texas, numbered and styled as follows: “No. 4973: in Re: Estate of Matilda C. Clayton, Deceased.” Rufus Williams was appointed temporary administrator and notice of the application to probate the will was issued. On January 15, 1956, Marshall Clayton and many other heirs of Matilda C. Clayton, Deceased, individually and as representatives of all the heirs of Matilda C. Clayton, filed their petition to contest the application of Rufus Williams to probate the purported will of Matilda C. Clayton. On P'ebruary 27, 1956, the application to probate the purported will, as well as the contest thereof, was commenced and heard by the County Judge of Gregg County, Texas. On February 28, 1956, after what appears to have been a full-fledged hearing on the application to probate the will .as well as on the contest thereof, the County Court found and concluded as a fact that Matilda C. Clayton was of unsound mind on July 22, 1952, the date she executed the said purported will, and entered a judgment refusing to admit the instrument to probate. On March 8, 1956, three of the beneficiaries under the purported will of Matilda C. Clayton filed an appeal bond in the County Court, which ■was approved on said date. The original papers and1 appeal bond along with a certified copy of the judgment of the County Court was filed in the District Court on April 19, 1956, which was more than 30 days from the date of the judgment in. the County Court (February 28, 1956) as required by Rule 330a, Vernon’s Ann.Texas Rules of Civil Procedure. Marshall Clayton and others filed a motion to dismiss the appeal because the record had not been filed within the time required by law. The judge of the District Court in cause No. 28,497-B, styled, “In Re Estate of Matilda C. Clayton, Deceased,” sustained the motion to dismiss the appeal; holding, in effect, that the judgment of the County Court had become final. An appeal from that judgment of dismissal was taken to this Court by Frank Clayton only. This Court, in cause No. 6934, styled “Frank Clayton, Appellant, v. Marshall Clayton, et al., Appellees,” affirmed the judgment of the trial court, 297 S.W.2d 255, and the Supreme Court “refused” an application for writ of error by Frank Clayton.
On May 10, 1957, Frank Clayton and numerous others, being interested in getting the purported will of Matilda C. Clayton, Deceased, admitted to probate, filed an “application for certiorari” in the District Court of Gregg County, Texas. On May 17, 1956, an order was signed by the Judge of the 124th District Court granting the application, ordering a writ of certiorari to issue, and fixing a bond. On June 11, 1957, an amended application for certiorari was filed. The writ of certiorari was issued by the District Clerk of Gregg County. The bond fixed by the District Judge was filed and approved and the transcript and original papers in the County Court case were duly prepared and filed in the District Court. All these proceedings were filed under No. 39,295-B on the civil docket of the 124th District Court, and styled “Corean Clayton et al. v. Marshall Clayton, et al.”
On September 5, 1957, Marshall Clayton and numerous others, with the permission of this Court having been granted, filed *568their petition for a writ of prohibition, contending that the judgment of the County Court denying the application to probate the purported will of Matilda C. Clayton was a final and binding judgment; and that this Court having sustained the judgment of the District Court in dismissing the direct appeal, such judgment became the judgment of this Court, and seeking a writ prohibiting the said Frank Clayton and all others who desire to reverse the judgment of the County Court and their agents and attorneys from filing and prosecuting any suit or cause of action involving the issues pertaining to the probating of the purported will of Matilda C. Clayton, Deceased, and to cease and desist from further prosecuting the cause of action No. 29,395-B, styled Corean Clayton et al. v. Marshall Clayton et al.; and, to command the Hon. David C. Moore, Judge of the 124th Judicial District Court of Texas, to cease and desist from entertaining any suit or cause of action involving said issues of probating said purported will and from proceeding further in said cause No. 29,395~B, other than to set aside his order fixing the amount of bond in said cause and dismiss said suit in its entirety.
The judgment of the County Court denying the will to probate is a final judgment. 14-A Tex.Jur., 121, Sec. IOS, and authorities therein cited. See also 14-B Tex.Jur. 91, Sec. 1022, and authorities therein cited.
The respondents take the position that they are entitled to prosecute an appeal from the County Court judgment as a matter of right, and base their contentions upon Sec. 30 of Vernon’s Texas Annotated Probate Code. They cite the case of McDonald v. Edwards, Tex.Civ.App., 115 S.W.2d 762, affirmed 137 Tex. 423, 153 S.W.2d 567, 569, in support of their contention. It will be noted that in that case the court said: “* * * It would serve no useful purpose to discuss here the rules relating to a direct appeal from the prohate court to the district court, because that question is not involved here.” (Emphasis added.)
A direct appeal was taken in cause No. 4973 when the appeal bond was filed within the time prescribed by law. That appeal was abandoned by failure to file the record in the district court within the time required by law. The county court was deprived of jurisdiction to act in the case from the time the appeal bond was filed until the period of time had elapsed in which to file the original papers and transcript in the district court. When the period of time was up to file the papers and transcript in the court, jurisdiction reverted to the county court. Bearing in mind that only three of the respondents filed an appeal bond in the county court case, the remaining respondents would have reaped the benefit of any favorable judgment that might have been obtained by those three parties had they duly prosecuted their appeal and prevailed. It is well-established law that a party is not entitled to certiorari after he has taken the case on direct appeal to the district court. 9 Tex.Jur. pp. 23-24, Sec. 4; Pearce v. Leitch, 43 Tex.Civ.App. 398, 96 S.W. 1094; and Harbison v. Harbison, Tex.Civ.App., 56 S.W. 1006. The holding of the majority in this proceeding is in direct conflict with the last cited cases.
The respondents in this case take the position that it was solely the fault of the County Clerk that the appeal was not filed in the District Court within the time prescribed by law. There is nowhere in the records that have been brought before this Court any form of request to the County Clerk to transmit the papers in the original proceedings or a transcript to the District Court. The law requires diligence on behalf of those appealing a case to see that the necessary instruments are filed within the time prescribed by law.
Respondents challenge the jurisdiction of this Court to grant the relief prayed for herein and contend that the judgment of this Court affirming the judgment of the *569District Court dismissing the appeal from the County Court is in effect a separate and distinct judgment from that which they seek to appeal to the District Court by certiorari. The District Court and this Court have at least impliedly held that the judgment of the County Court denying the will to probate is a final judgment and binding upon the world, and this Court not only has the jurisdiction to grant the relief prayed for but the petitioners are entitled to the relief sought. The holding of the Supreme Court in the case of Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994, is in point, and the court not only has jurisdiction to enforce its judgment, but it is the court’s duty to do so. In the case of Hillhouse v. Allumbaugh, Tex.Civ. App., 238 S.W.2d 799, 800, the court said: “ * * * It is only when the appeal to the district court is dismissed because of failure properly to effect the appeal that the judgment of the county court remains in effect. In such case, the county court judgment remains in effect because nothing has been done sufficient in law to vacate it.” Therefore, when the Supreme Court un-qualifiedly refused a writ of error in the case of Clayton v. Clayton, supra, the judgment of the trial court not only became final, but also it became the judgment of this Court; and the petitioners herein are entitled to the benefits of that judgment without continuing to be disturbed and harrassed by further suits or efforts to appeal regardless of the statute. Phillips Petroleum Co. v. Trigg, Tex.Civ.App., 157 S.W.2d 411, no writ history. Section 30, Vernon’s Ann.Texas Probate Code, does not give the parties the right to appear in a County Court case, have a full-fledged trial and contest of every issue that could be raised by a direct appeal to have the privilege of such trial, then take an appeal and through their lack of diligence suffer a dismissal of that appeal, and then come back and appeal by way of certiorari.
We have here the identical parties suing out an application for a writ of certiorari who were proponents and contestees of the will at the trial in the County Court and the same identical parties who were contestants. Other parties were made defendants in the petition for certiorari but they were the attorneys of record for the contestants in the County Court trial, the administrator appointed by the County Judge at the time he announced his judgment and another party who is alleged to have acquired some interest in the property (the pleadings do not allege whether he acquired his interest before the County Court trial or afterwards). So, on a question of lack of jurisdiction of this Court to issue the writ of prohibition, the case of Evans v. Moore, Tex.Civ.App., 109 S.W.2d 359, no writ history, is in point. In that case the court said:
“This is an application to this court to issue its writ of prohibition against A. M. Moore, as guardian of Vernon White, Jr., a minor, the Honorable Clarence E. McGaw, judge of the 124th district court of Gregg county, and others, to prevent the plaintiffs in a case pending in that court from prosecuting, and the court from hearing and determining, the issues there presented. * * *
“The pending suit in Gregg county is between precisely the same parties (excepting one defendant in the Tar-rant county case) and involves the same issues previously tried and determined by the Tarrant county court; when we affirmed that judgment, it became the judgment of this court, and it cannot be denied that Courts of Civil Appeals have the power, and that it is their duty, to stay any act which interferes with the enforcement of such decrees. Article 1823 Rev.Civ.Statutes; Houston Oil Co. v. Village Mills Co., 123 Tex. 253, 71 S.W.2d 1087, 1089.
"The duty of this court to protect its judgments does not require it to wait until some physical act or obstacle is placed as a barrier before those whose duty it is to execute its mandates, but *570may be exercised when a suit has been instituted in any court which may result in its defeat. To this effect is Houston Oil Co. v. Village Mills Co., supra, where it was said: ‘Where rights are established by a judgment of this (Supreme) court, the court has undoubted power to secure, by any proper writ necessary to the end, the enjoyment of the rights so established. Where a suit is brought in an inferior court, by any of the parties or privies to such judgment, against those in favor of whom the judgment was rendered, or their privies, and the suit directly involves the relitigation of rights established by the judgment, and is of such a nature that, if successfully prosecuted, will result in a judgment which will purport the divesting of those rights, the prosecution of such suit will be prohibited as being an interference with the enforcement of the judgment of this court. Conley v. Anderson, Tex.Sup., 164 S.W. 985; Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224; City of Palestine v. City of Houston, Tex.Civ.App., 262 S.W. 215.”’ (Emphasis added.)
And again, in American Law Book Company v. Chester, 110 S.W.2d 950, 951, er. dism., the Court of Civil Appeals at Beaumont, by a Per Curiam opinion, among other things, held:
“Relator is entitled to its writ of prohibition as prayed for. The affirmance of the judgment of the lower court against respondent made that judgment the judgment of this court; and the successful prosecution by respondent of his will of review would have the effect of divesting out of relator the rights granted him by our judgment of affirmance, affirmatively invoking the following proposition announced by this court in Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ.App., 92 S.W.2d 493, 495: ‘The prosecution of the suit for review would constitute an interference with the enforcement of the judgment of this court, which threatened invasion of its jurisdiction it has power by writ, of prohibition or other appropriate writ to restrain.’ ”
See also Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ.App., 92 S.W.2d 493, certiorari denied in Federal Crude Oil Co. v. Yount-Lee Oil Co., 299 U.S. 554, 57 S.Ct. 16, 81 L.Ed. 408; State v. Miller, Tex.Civ.App., 183 S.W.2d 278; Snelson v. Drane, Tex.Civ.App., 134 S.W.2d 445, wr. dis.; Texas National Bank v. Zellers, Tex.Civ.App., 75 S.W.2d 890; Halbrook v. Quinn, Tex.Civ.App., 286 S.W. 954, no writ history; and Rogers v. Waters, Tex.Civ.App., 267 S.W.2d 582.
The Rules, statutes and decisions of this state and other states on the question presented here to decide are both conflicting and confusing, and the three opinions in-this case will neither resolve the conflicts-nor reduce the confusion. The writ of certiorari had its origin in the common law. The fact that there is much confusion in the scope and view of the certiorari is pointed out in 14 C.J.S. Certiorari § 172, p. 311.
Our statute, Sec. 30, Vernon’s Ann.Texas Probate Code, in effect, provides for a dual method of appeal, but certiorari provides for an appeal only to revise and correct the record. It has been quoted many times, but is quoted again for the purpose of the discussion here:
“Section 30, Probate Code, Certiorari.
“Any person interested in proceedings in probate may have the proceedings of the county court therein revised and corrected at any time within two years after such proceedings were had, and not afterward. Persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to apply for such revision and correction. Acts 1955, 54th Leg. p. 88, ch. 55.”
*571Rule 344, V.A.T.R.C.P. provides as follows:
“An application for writ of certio-rari to the county court shall be made to the district court, or a judge thereof. It shall state the name and residence of each party adversely interested, and shall distinctly set forth the error in the proceedings sought to be revised.” (Source: Art. 933, unchanged) . (Emphasis added.)
Rule 350, V.A.T.R.C.P. reads as follows:
“The calise shall be tried de novo in the district court, but the issues shall be confined to the grounds of error specified in the application for the writ. The judgment shall be certified to the county court for observance.” (Source: Art. 939, unchanged.) (Emphasis added.)
Now, Sec. 30 of the Probate Code authorizes an appeal by certiorari by any interested person in a probate matter within two years after rendition of judgment or entry of order in such matter to have errors in the proceedings (not errors of judgment) revised and corrected; and, by persons non compos mentis and minors within two years after the removal of their respective disabilities. Rule 344 requires that the application for the writ shall distinctly set forth the error in the proceedings (not errors of judgment) sought to be revised. Rule 350 says the cause shall be tried de novo in the district court, but the issues shall be confined to the grounds of error specified in the application for the writ. The Supreme Court of Texas in the case of Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692, speaking of a trial de novo said:
“The opinion itself clearly defines what is meant by a de novo trial. It even goes to the pains and extent to distinguish such a trial from a trial to merely review a nonpermissible error. Even if the opinion of the Court of Civil Appeals did not clearly disclose what is meant by a de novo trial, the authorities generally have so clearly defined the scope of such a trial in a judicial tribunal as to leave no room for debate as to what is covered thereby. A de novo judicial trial means a trial ‘anew; afresh.’ Webster’s New International Dictionary. A de novo trial means ‘anew; afresh; in the same manner; with the same effect; a second time.’ 18 C.J. 486 ; 25 C.J.S. De novo p. 1011. Power to try a case de novo vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in
that court. Zurich General, etc., Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674, 675. Prom the above authorities we conclude that a de novo judicial trial means a full civil trial on the facts as well as the law. It follows that in refusing the writ of error from the first opinion of the Court of Civil Appeals we held that a de novo trial under Article 6059 means a full civil trial on the facts as well as the law, and not merely a trial to correct non-permissible errors. As to what is meant by a de novo trial we also cite the cases of Schultz & Bro. v. Lempert, 55 Tex. 273, and Ex parte Morales, Tex.Cr.App., 53 S.W. 107.” (Emphasis added.)
This renders Rule 350 conflicting within itself because it first says that it shall be tried de novo (afresh, anew, as if the case had been originally filed in the district court) then it says the issues shall be confined to the grounds of error specified in the application for the writ. It is impossible to try the case anew and at the same time limit it to specific issues, as stated in the Rule.
Some Texas cases hold that issues of fact are reviewable by certiorari while others hold to the contrary. In the case of State v. De Silva, 105 Tex. 95, 145 S.W. 330, the court at page 333 under column 1, said:
*572“The defect of the affidavit, if it was defective, could not confer jurisdiction upon the district judge to issue the certiorari; the proceedings not being judicial in character. Section 8 of article S of our Constitution confers upon the district courts authority to issue writs of certiorari, which invests that court with power to use the writ for any purpose to which it could be applied, which is tersely stated thus: ‘Certiorari is a writ issued by a superi- or court to an inferior court of record, requiring the latter to send into the former some proceedings therein pending, or the records of proceedings in some cause already terminated in cases where the procedure is not according to the course of the common law. In such case, however, the officer or tribunal to whom the writ is issued must be an inferior officer or tribunal exercising judicial functions, and the proceedings sought to be reviewed must be judicial proceedings; for it is not the office of a common-law writ of cer-tiorari to review ministerial acts, but only to correct errors of law apparent on admitted or established facts — never to settle disputed points.’ 4 Encyc.Pl. & Pr., pp. 8, 11.” (Emphasis added.)
In the case of Schwind v. Goodman, Tex.Com.App., 221 S.W. 579, at pages 580-581, opinion approved by Supreme Court, the court said:
“The writ of certiorari was known to the common law before statutes authorizing and defining its use and application were enacted, and it seems to be well settled that—
“ ‘Except where so made by statute, the writ of certiorari as used to correct the proceedings of inferior tribunals is not a writ of right, but issues only on special cause shown to the court to which application is made, and the court is vested with judicial discretion to grant or refuse the writ as justice may seem to require.
“ ‘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 and technical, or where, although there is error in fact, substantial justice has been done, and no appreciable injury has resulted to the complaining party.’ 6 Cyc. 748, 749.” (Emphasis added.)
It must be borne in mind that the chief complaint here is an alleged error of fact. The respondents allege in their petition for certiorari, an error on the part of the County Judge in finding and concluding as a fact that Matilda C. Clayton, deceased, was a person of unsound mind at the time she executed the will. Such finding was certainly within the jurisdiction and discretion of the County Judge. If such was error, it was an error that is not revealed by the record. It was an error of judgment and is not evident in the proceedings sought to be corrected. If the County Judge had found that Matilda C. Clayton was of sound mind and through mistake denied the will to probate, such denial would have been an error in the proceedings, which if not discovered in time to be corrected by the County Court, could have been corrected by certiorari to the District Court.
It was made known to this Court at the time the case was argued that the evidence adduced upon the trial in the County Court (when the will was offered for probate and was contested) was not brought forward to the District Court for review. This presents another confusing question. The statute provides that the proceedings may be “revised” and “corrected” by cer-tiorari. There is no way of telling whether the facts found by the County Judge is error or not. According to Webster’s dictionary, “revised” means: “to review; to re-examine; to look over with care for correction; as, to revise a writing; to revise a proof sheet; alter, and amend; as, to revise statutes.” Webster defines “cor*573rect” as: “to make right; to bring to the standard of truth, justice or propriety; as, to correct manners or principles; to amend; etc.” As synonyms of the word “correct” the following are listed: “Amend, improve, reform, etc.” Thus it seems that the use of the words “revise” and “correct” in the statute -means to have any errors in the proceedings revised and corrected to reflect the truth, purpose and intent at the time the proceedings were had. Although, our courts have on occasions “reversed” on hearings by certiorari judgments and orders of probate courts, yet the word “reversed” is defined by Webster to mean: “in law, to overthrow by a contrary decision; to make void; to annul; as, to reverse a judgment, sentence or decree.” This approach to a discussion of the statute and rule here involved has never before been noted, but it seems to be a fair and reasonable approach, especially where the parties have been present and participated in a full-fledged trial and failed to perfect an appeal whereby, unquestionably, the judgment or order of the probate court could be reversed and a different judgment rendered. It seems that the courts have, through the years, failed to note that the method of appeal by cer-tiorari is actually limited to the revision and correction of error in the proceedings, not to reverse because of some difference of opinion on a fact issue that is not revealed in the proceedings.
The chief complaint of respondents in their petition for certiorari is that the court erred in finding and concluding as a fact that Matilda C. Clayton was of unsound mind at the time she executed the purported will. Following this, they alleged that the County Judge erred in denying the will to probate; refusing to admit said will to probate; finding that the person named as independent executor in the purported will was incompetent to serve as temporary administrator of the estate of Matilda C. Clayton and discharging said temporary administrator; overruling certain exceptions urged to the petition to contest the will in the County Court by petitioners here; and, in refusing to dismiss one of the respondents as a defendant in the suit to contest the will in the County Court. These are not allegations of error "in the proceedings,” they are mere conclusions of fact that have been decided against them and amount to no more than alleged errors of judgment.
As a matter of law, it must be presumed that the County Judge had before him some evidence of probative value upon which he based his judgment. This cannot be overcome by a mere allegation or-conclusion on the part of pleaders. Such finding and conclusion of fact, as above stated, was within the jurisdiction and discretion of the County Court. There is no allegation of fraud or abuse of discretion; just an effort to get a new trial on the facts as they were originally presented to the County Court. Neither is there any allegation in the petition for certiorari that the estate of Matilda C. Clayton has been or will be damaged or destroyed. Assuming as a fact, which this Court is bound to do in view of the judgment of the County Court, Matilda C. Clayton was of unsound mind at the time she executed the will, her estate will be preserved, protected and distributed as the law directs in such cases. If she had not the mental capacity to make a will there is no other provision for the descent and distribution of her estate than that which will be followed in the administration of the estate under the judgment of the County Court.
If the judgment of the County Court had been that Matilda C. Clayton was a person of sound mind at the time the will was executed, the County Judge would have had no alternative but to admit the same to probate. In that case, the other errors complained of would not have happened, unless it would have been the removal of the temporary administrator. Be that as it may, they are all fact issues, all of which were incidental to the disposition of the will contest.
*574From the authorities hereinabove cited, as well as the case next to be discussed, irrespective of the statutes and rules, issues of fact in such cases as existed in the County Court out of which this litigation grew, cannot be reviewed on appeal by certi-orari. Especially so where the parties appear, and have a full-blown trial, or, have notice to appear but fail to do so without justification or excuse. The case of Richardson v. Lingo, Tex.Civ.App., 273 S.W.2d 119, wr. ref., n. r. e., is directly in point. This case holds that issues within judicial discretion in the County Court can not be reviewed by the District Court except on direct appeal. With that holding I agree. There being no allegation that the errors complained of were ones of law and judicial in character, the District Court would have no alternative except to sustain the special exceptions of the defendants (petitioners here) and dismiss the case. The allegations óf the respondents in their petition for certiorari do not set forth any errors in the orders of the Probate Court, or any errors of law committed by the Probate Court. Very definitely they do not allege the order of the Probate Court to be void, neither do they allege the Probate Court to be without jurisdiction to make and enter the order which they in truth and in fact seek to “reverse,” not to “revise and correct.” In Richardson v. Lingo, supra, the parties attempted to appeal by way of certiorari (after a direct appeal) to review a judgment of the County Court based upon a finding of fact. In that case, no appeal bond was filed in the direct appeal which was dismissed; they just gave notice of appeal, which they did not have to do. 14 — A, Tex.Jur. 132, Sec. 114, and authorities therein cited. On appeal by certiorari, the defendants answered by special exceptions which the District Court sustained and dismissed such appeal. On appeal to the Court of Civil Appeals, the appellants complain of the action of the trial court in dismissing application for writ of certiorari, because: “(1) Such application stated a cause of action reviewable in the District Court by certiorari; (2) the court’s holding that only questions of law could he considered by the District Court was error because an order of the Probate Court allowing the will to be probated is reviewable by certiorari in the District Court; (3) the trial court’s action was error for the reason that plaintiffs’ petition distinctly did set forth the errors they complain of.”
The appellees presented the following counter points:
“(1) The record in the Probate Court revealed that that court did not commit any error in the proceedings had there; (2) that appellants’ application for the writ of certiorari set forth the errors in the order of the Probate Court complained of and failed to distinctly set forth any errors which were errors-of-law and judicial in character, or that were beyond the jurisdiction of the Probate Court, or in excess of such jurisdiction; (3) the writ of certiorari so sought by the appellants did not seek to have any proceedings of the Probate Court revised, or corrected, but such application merely requested the trial court to render appellants a new trial on matters of fact which had been decided in that court against them.1’ (Emphasis added.)
After discussing the various statutes and Rules, the court said:
“An examination of the appellants’ application for writ of certiorari by this appellee’s attorneys fails to reveal an allegation wherein they have alleged that the lower Court committed any error, nor does such application ‘distinctly set forth any errors’ in the orders of the Probate Court of which appellants complain; nor does such application distinctly set forth any error of law in the proceedings in the Probate Court or any orders which were beyond the jurisdiction of the Probate Court and which such allegations and such errors must be shown before this *575Court has jurisdiction to (order) a trial de novo under and by virtue of a writ of certiorari.
******
“A case in which the fact situation closely resembles the facts before the Court in the case at bar is the case of Robertson v. National Spiritualists’ Ass’n, Tex.Civ.App., 25 S.W.2d 889, 891 (writ dismissed). In this case the appellant brought suit for breach of contract; the facts were that the appellant, who was an attorney, was discharged after he failed to probate a Will in the County Court. The appellant had a contingent-fee contract which provided that $25,000 would be paid appellant, ‘if and when said will should be probated by final judgment or decree in a court of competent jurisdiction’. Judgment was rendered in the County Court denying the Will to probate, and to which action the appellant attorney gave notice of appeal. The Appeal Bond from the County to the District Court was not executed, and the appeal was dismissed for lack of jurisdiction. The appellant in this suit alleged that he was ready, willing and able to secure the final probate of said Will and would have performed such services but for the wrongful act and breach of contract by the appellee. The appellant in his case on appeal urged that he had a right to have the judgment of the County Court revised and corrected by certiorari proceedings notwithstanding that the appeal had been originally dismissed by the District Court. (The) appellate court held that such statutory provisions did not apply to the facts of the case and in so holding stated as follows:
“ ‘That in order for appellant to have established his right to recover against appellee, it was incumbent upon him to allege and prove facts sufficient to show: (a) That appellee would have been entitled, as against the judgment of the county court refusing to probate said instrument, to the writ of certiorari to have reviewed said judgment — facts from which it would have appeared that such proceedings were void or that some substantial wrong and injustice to the estate of John L. Jackson had been done. * * * This holding is in accord with the following rule of law announced by Chief Justice James in the case of Comstock v. Lomax, Tex.Civ.App., 135 S.W. 185, 186, viz.: “The writ of certio-rari to annul proceedings of the county court in probate matters is not a writ of right in the sense that the proceeding will be revised for errors as on appeal. Relief is only granted in such cases when it is made to appear that the proceeding is void, or that some substantial wrong and injustice to the estate has been done.” ’
“ ‘After a careful inspection of the statement of facts, we find that appellant failed in both of such requirements.’ In the case of Johnson v. Coit, Tex.Civ.App., 48 S.W.2d 397, 400, the Court, in discussing what was the basis of a plaintiff’s suit under an application for a writ of certiorari, stated as. follows:
“ ‘As provided by article 933, it was. incumbent upon plaintiffs to distinctly set forth in their application for the writ of certiorari the errors in the orders of the county court sought to be revised. And under the rule of decisions of this state the burden was upon the plaintiffs to further allege that the errors complained of were ones of law and judicial in character, and not mere irregularities relating to the performance of ministerial acts or such as were done in the exercise of a sound discretion of the court. And the writ applies to an order of court sought to be revised if the same was beyond the jurisdiction of the county court or in excess of such jurisdiction. 9 Tex.Jur. pp. 28-30, and authorities there cited.
*576“ ‘We have reached the conclusion that the county court had no jurisdictional authority to make the orders referred to authorizing and approving the deed of conveyance by the executors to Mrs. Cora -Shannon, and approving the final account of the executors showing that such a conveyance had been made in accordance with the former order of the court authorizing the same.’ And again, in the same case, the Court states the general rule to the effect that the hearing on the writ is confined to the question of whether error was committed by the lower Court, and in so doing stated as follows:
“ ‘As provided by Article 939, after the writ of certiorari is granted, the case is then tried de novo in the district court; and in 9 Tex.Jur. p. 42, the following is safd: “The hearing on the writ is generally confined to the question of whether error was committed by the lower court. The District Court in such proceeding may not correct errors in deeds of guardians or of administrators, nor may it try the title to land; it may review only the errors of the County Court.” ’
“In the case of Dunaway v. Easter, 133 Tex. 309, 129 S.W.2d 286, 288 (Commission of Appeals, opinion adopted by the Supreme Court), an administrator had qualified and had approved a claim presented to him. The heirs at a later date filed a petition for a writ of certiorari to review the proceedings and which was granted by the District Court. Upon appeal the Commission of Appeals held that the District Court should have dismissed the petition for writ of certiorari, and in so doing stated as follows:
“ ‘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 v. Wynne, Tex.Com.App., 133 Tex. 448, 129 S.W.2d 286. * * *
"'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 zvas 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 v. Wynne, 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 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 Dunaway administrator, as found by the district court, it became its duty to dismiss the petition and it erred in not so doing.’
“In the case of Clopper v. Hutcheson, 16 Tex.Civ.App. 157, 40 S.W. 604, the Court holds that a decree of the County Court should not be revised by the District Court on certiorari where the proceedings in the County Court were in strict compliance with the statutes and the law where, if there was any error at all, it was in *577judicial discretion, and not in law. The Court, in discussing Article 932 relating to certiorari and Rule 3S0 as regards a trial de novo, and in discussing the instant case, states as follows:
“‘If there was any error at all, it was in judicial discretion, not in law, for the law was complied with to the letter. There was nothing, therefore, in the proceedings of the court to put any one upon notice of any illegality in the transaction. The ground of revision must and can only be a lack of discretion in the judge in passing upon the facts in regard to the fairness of the price, and the district court was called upon to pass upon it, not in the light of the facts before the county judge, but other, and perhaps totally different, testimony. We do not believe that it was contemplated by the legislature that such a ground for revision of a probate order should be tenable. To sanction such a ground would be to lay every title from an executor, administrator, or guardian open to attack, and that, too, upon a point against which it would be impossible to guard. Compliance with the most minute requirements of the law would be no safeguard against the attack, for it is an error that is not based upon the law, but upon a lack of proper discretion in the county judge. The attack may come many years after the sale was made, when the evidence before the county judge is inaccessible or unknown; and a revision of his official discretion would take place, and upon a different state of facts it might be held that he was wrong in ruling that the price for the land was a fair one, and therefore titles would be unsettled, and confusion reign. To thus remedy a supposed wrong to an individual would be to unsettle the titles of thousands. Those titles may have passed through many mutations, as in this case, and may have been held unsuspectingly for many years; the parties having no notice of errors in the probate proceedings, and no way of ascertaining them. Public policy would, in the absence of fraud or any error of law, preclude a revision of the order of the county judge upon a question of discretion alone. Not only would the holders of titles from the estates of decedents suffer from permitting a revision of matters that must, in the very nature of things, be confided to the judicial discretion of some one, but great loss would be entailed upon such estates, the practical effect of such power of revision being to prohibit the sale of such estates. No one would be found with sufficient temerity to purchase property that carried with it not only the possible, but probable, means of destruction of its title, against which business foresight and prudence could make no provision.’ ”
Respondents challenge the right of the petitioners to the writ of prohibition by this Court because they have other remedies, such as exceptions, plea in abatement, etc., in the District Court. A careful study of the authorities cited near the beginning of this opinion will support the theory that it would be unjust to require the petitioners to suffer the delay in the administration of the estate, as well as the long, tedious and arduous task of trial and appeal, as well as the unnecessary expense to defend the petition in the District Court and then appeal to this Court and the Supreme Court. In such cases, equity should grant the relief prayed for. The very purpose for which the writ of prohibition is resorted to most frequently is to prevent an inferior court from entertaining suits or proceedings which have for their purpose the re-litigation of controversies already settled by decisions of superior courts. Lowe and Archer, Texas Practice, Extraordinary Proceedings, p. 48S, Sec. 512, and authorities therein cited.
*578A careful study of the opinions in this case will readily reveal that each member of this Court recognizes the conflicts of decisions on the question of appeal by certiorari. The holding of the majority in this case is very definitely in conflict with the following cases: State v. De Silva, supra; Schwind v. Goodman, supra; Richardson v. Lingo, supra; and Robertson v. National Spiritualists’ Ass’n, supra.
In Jirou v. Jirou, 104 Tex. 136, 135 S.W. 114, in the petition for certiorari, certain allegations of errors in the proceedings were made, to-wit: that the judgment of the County Court was void because of the relationship of the County Judge to one of the respondents; and, errors of description in the property. Such errors are errors in the proceedings, not errors of judgment based upon findings of fact.
The respondents here are in no position to complain of not having a trial by jury. They instituted the original proceeding in the County Court to probate the will. They participated in the trial. They perfected their appeal, but failed to follow it up.
There is no semblance of resemblance to our mode of probating wills in common form in other jurisdictions. The probate of a will in common form is when the will is probated without any notice of any kind to anybody. We follow the solemn form of probating wills in other jurisdictions which require notice to all interested parties. Our statutes require notice by posting. Persons interested in the estates of deceased persons are required by law to be on the lookout for such notices.
The case of Zamora v. Garza, Tex.Civ.App., 117 S.W.2d 165, is not in point. No appeal bond was filed in the case. No two cases could be no more in conflict than Zamora v. Garza, supra, and Richardson v. Lingo, supra.
If the law is as contended by the majority in their opinions, it is going to cloud more titles to real estate in the State of Texas than anything that has ever happened before; and, will, no doubt, invite a tremendous amount of litigation involving titles to properties that have been sold through probate and administration proceedings.
No right of appeal by certiorari exists even though a direct appeal is dismissed because of failure to file an appeal bond on direct appeal. 9 Tex.Jur. 23, Sec. 4; Richardson v. Lingo, supra. Where an appeal bond is filed and abandoned, no right of appeal by certiorari exists. Robertson v. National Spiritualists’ Ass’n of United States of America, Tex.Civ.App., 25 S.W.2d 889, er. dism. The last cited case also holds that a judgment of the Court of Civil Appeals dismissing an appeal from the Probate Court for failure to file an appeal bond makes a judgment of the Probate Court refusing a will to probate also the judgment of the Court of Civil Appeals.
The writ of prohibition should be granted as prayed for.