On Motion for Rehearing.
Appellant, through his attorney, has filed a very interesting and vigorous motion • for rehearing. It is contended that in disposing of the case we failed to pass upon the very gist of the appeal, viz., “the power and authority of the probate court to make an order as it did awarding the care and custody of the minor, Victoria Elizabeth Douglass, to Mrs. Lena Stover, the appellee, pending the appeal of the probate case from the probate court to the district court”; ■ appellant asserting that the above is the only real point raised by him in the case.
Although we believe that, in passing upon the following proposition presented by appellant, to wit, “that the decree of the probate court allowing and giving to defendant, Lena Stover, the right to appeal said probate case by a supersedeas bond is null and void and unenforceable, as said court did not have the authority, power, or jurisdiction to allow such bond in such case,” the first proposition was necessarily involved and thereby determined adversely to appellant; yet, assuming that, in discussing the case we failed to give that- prominence to the first proposition to which appellant believes 'it was entitled, and that there may be no misapprehension of the position of the court, the following comment is made: Prior to the hearing of the contest between appellant and ap-pellee, appellee had, on proper application, been duly appointed temporary guardian of the person and estate of said minor, which appointment, by proper proceedings,' she had requested to be made' permanent, 'which temporary appointment was in full force and effect at the time of the hearing of the contest between appellant and appellee.
The order questioned on this appeal, if same had been entered without reference to the appeal prosecuted in said probate proceedings to the district court for the purpose of awarding the custody of Victoria Elizabeth Douglass to appellee, would have been void as being entered by a court without jurisdiction; the county court not having jurisdiction over the custody of minors, except as wards of guardians appointed by them. Ex parte Reeves, 100 Tex. 617, 103 S. W. 478. Of proceedings involving the custody of a minor as contradistinguished from custody that a county court sitting in probate has the right to control through the appointment of a guardian of the person of *1043a minor, tie district court alone has jurisdiction. Legate v. Legate, 87 Tex. 248, 28 S. W. 281.
The order entered by the probate court, fixing the amount of the bond to be given as a supersedeas by appellee in prosecuting her appeal from the order of that court refusing her application to be appointed guardian of the estate and person of Victoria Elizabeth Douglass, and granting that of appellant, is only declaratory of the legal effect that the execution of such bond would have upon the proceedings had in the county court sitting in probate, from which said appeal was prosecuted, to wit, that the enforcement of this order,would be suspended pending the appeal, leaving the custody of Victoria Elizabeth Douglass with appellee during that time, and the right of appellant under Ms appointment as guardian of the person and estate of said minor would likewise be suspended so that he could not exercise the authority conferred upon him by law as such guardian perforce of his appointment and qualification thereunder as such until the appeal prosecuted by appellant should be determined. This was the effect of the appeal on the execution of the supersedeas bond without reference to said order awarding the custody of said minor to appellee pending said appeal. It neither added to nor detracted from the appeal thus perfected. Therefore, it was not even an attempt to exercise jurisdiction in awarding the custody of the minor in that character of proceeding over which the district court can alone exercise original jurisdiction, as all the rights that said order apparently, on its face, conferred upon appellee accrued to her through the execution of the supersedeas bond and not by said order.
The jurisdiction of the county court of Dallas county as a probate court had been properly invoked by the application of ap-pellee for appointment as guardian of the person and estate of said minor, and as well by the contest filed thereto by appellant and his application for appointment as guardian of the person and estate of said minor and appellee’s contest filed to appellant’s application. The issues thus presented involved the estate of the mindr as well as the appointment of a guardian of her person, and, to that extent, her custody or control as a ward by the guardian appointed of her person. This did not involve in any respect that character of proceeding over which the district court alone is given jurisdiction, to wit, the awarding of the custody of a minor to another, even as against parents, the natural guardian, or the guardian theretofore appointed by a court exercising probate jurisdiction.
The motion for rehearing is theretofore overruled.