Berry v. O'Hair

McCLENDON, C. J. Appeal by J. H. H. Berry and John R. Brandon from a judgment of the county court of Burnet county, by which Berry was 'perpetually enjoined from selling, or in any way disturbing Mrs. O’Hair in the possession of, certain cattle. Brandon. was dismissed from the suit with his costs. The litigation grew out of the following facts; Mrs. S. B. O’Hair and her husband, Joe O’Hair resided in Burnet county. Joe O’Hair became non compos mentis while in Lampasas county, and Berry instituted in the county court of that county guardianship proceedings, and was appointed temporary guardian of his estate. At the next regular term of the court, Mrs. O’Hair contested the jurisdiction of the court on the ground that her husband resided in Burnet county. Subject to this plea, she asserted her right to be appointed guardian of her husband’s estate, should the court retain jurisdiction. This plea was overruled apparently on the ground that Joe O’Hair had in fact moved his residence to Lampasas county before he became non compos mentis, and Mrs. O’Hair was appointed permanent guardian of the estate. This order was made on June 4,1927. Berry appealed from it to the district court of Lam-pasas county, and that court sustained Mrs. O’Hair’s plea to the jurisdiction, and remanded the proceeding to the county court, with instructions that it be dismissed for want of jurisdiction.. Berry appealed to this court, and his appeal was dismissed upon agreed motion on the ground that, since filing the record, Joe O’Hair had died, and the questions involved had therefore become moot. On September 26, 1927, the county court of Lampasas entered an order authorizing Berry as guardian to sell the cattle at issue as the property of his ward, on the ground that it was perishable. Mrs. O’Hair brought this suit against Berry and Brandon to restrain the sale of the property under the order, alleging that she owned the property in her own right; that the appointment of Berry as guardian of her husband’s estate was void, because the county court of Lam-pasas county had no jurisdiction in the matter, and Berry was about to sell the property to Brandon. Brandon disclaimed any interest in the property. Mrs. O’Hair discontinued as to him, and he was dismissed with his costs. Berry disclaimed any interest in the property, and asked that the suit be dismissed as against him, on the ground that he was not sued in his representative capacity. The injunction was granted as above stated as to Berry, and he was taxed with the costs. Mrs. O’Hair has filed a motion to dismiss the appeal on the ground that no judgment was rendered against the appellants, and there is nothing, therefore, for them to appeal from. In so far as Brandon is concerned, this contention is correct, but it is not correct as to Berry. It is true that Berry was not sued in his representative capacity, and the judgment is not determinative of the question of title as between Mrs. O’Hair and her husband. However, the ground on which the injunction was sought and granted was that Berry was attempting to assert an authority as guardian under a void order. If the order was not void, then no relief should have been granted to Mrs. O’Hair because she was not seeking to contest the title to the property as between herself and her husband or his legally appointed guardian. Therefore the validity, of the order was directly brought in question, and the effect of the judgment granting the injunction was to hold the order absolutely null and void. It can be supported on no other theory. The motion to dismiss on the grounds stated therein is therefore overruled. It appears, however, from the agreed motion in the guardianship appeal that the questions involved have become moot, and for that reason the appeal should be dismissed. *568 .Toe O’Hair having died, the guardianship, as such, has terminated, and with it the authority of the guardian to sell the property in controversy. The authority of such guardian is limited to the making of a proper settlement of his trust in the probate court and with the legal representatives of his late ward. Burr v. Wilson, 18 Tex. 367; American Surety Co. v. Hardwick (Tex. Civ. App.) 186 S. W. 804; Carpenter v. Soloman (Tex. App.) 14 S. W. 1074; State Fair Association v. Terry, 74 Ark. 149, 85 S. W. 87; 28 Corpus Juris, pp. 1096,1097, and authorities cited in notes 1, 6, 12, 13, and 21. The appeal is dismissed. Appeal dismissed.