Bond v. Dillard

Bonner, Associate Justice. This suit was instituted in the District Court of Panola county on January 21, 1876, and, as amended, was in favor of Elizabeth Singletary and her husband, Frank Singletary, Joel P. Dillard, and Isaac B. Dillard in his own right and as next friend of the minors, Adelbert E., James A., and Louisa I. Dillard, against E. B. Ashurst, J. D. Youngblood, and James B. Bond, the appellant. The defendants were sued as sureties of G. W. Dillard, then deceased, upon his bond as guardian of said plaintiffs. He was charged with having converted to his own use the sum of $506.10, received by him as such guardian on September 30, 1867, and [309] which belonged to said minors jointly with a deceased brother, W. H. Dillard, and with having converted to his own use a certain bay mare, of the alleged value of $130, belonging to the said Isaac E. Dillard in his own separate right. The defendant Ashurst was served with citation on June 7,1876, and on the 12th of August thereafter judgment final by default was taken against him. It is alleged as error by appellant Bond that this judgment by default was illegal, for the reason that the defendants had then filed an answer, and also that it was a judgment final. So far as appears from the record, this answer was not filed until two days after the judgment by default; and although the judgment partakes of the nature of a judgment final, it did not authorize execution to issue, and was merged into the general judgment on the final trial. It is not complained of by the defendant Ashurst himself, and we do not think that, under the circumstances, the alleged error in this regard presents any sufficient reason to authorize a reversal of the judgment. At the August Term, 1876, the case was called for trial, when Isaac E. Dillard voluntarily took a nonsuit, and the cause was continued. At the next succeeding term, when the final trial wTas had, and after there had been a formal announcement of readiness, which was, however, permitted by the court to be withdrawn to file additional pleadings, he was permitted to intervene; but, so far as the record shows, this was done in his own individual right, and not in behalf of the minors, if he could appear for them at all as next friend. In our opinion, the proceedings and judgment as to them seem to have been without lawful authority, and for this error we think the judgment should be reversed. In this connection we deem it proper to say that it has been held in Pueket v. Johnson, 45 Tex., 550, that it is irregular to proceed in an action against minors without making their guardians parties, if they have any; and that if they have no regularly-appointed guardians, the court should appoint special guardians for them. This rule applies both to [310] minors who are plaintiffs as well as to those who are defendants. Under both the statutes of 1870 and 1876 it is made the duty of the court in such cases to appoint a special guardian in a suit or proceeding which is pending or about to be commenced, and this guardian is required to qualify by oath and bond. This is a wise provision, intended for the protection of the interests of minors, and should be enforced by the courts. (Paschal's Dig., arts. 6969-6973; Laws 15th Leg., 187, secs. 134-138.) There was a motion in arrest of judgment, for the reasons that under the act of the 15th Legislature, 173, to amend an act entitled “An act to organize the County Courts, and to define their powers and jurisdiction,” the cause should have been transferred to the County Court; and that under the act of the 15th Legislature, 178, sec. 45, entitled “An act to provide for the guardianship of persons and estates of minors,” &c., the County Court had exclusive jurisdiction of the suit. This suit was instituted before the passage of these acts, and when, without question, the District Court had jurisdiction of the subject-matter in controversy. We do not think that the first-named act was intended to apply to this character of suit, or that in the case now before the court it is necessary to construe or apply the provisions of the last-named act, and no opinion is expressed in regard to the same. The objection that the suit was for both a joint demand in favor of all the plaintiffs and a separate demand in favor of Isaac R. Dillard alone, we think, under our practice, which is intended to prevent circuity of actions and multiplicity of suits, was not well taken, and particularly in view of the fact that the suit was instituted on the bond of the defendants for the faithful performance on the part of G-. W. Dillard of his duties of guardian, and for alleged conversion of property of his wards, both which counts, if proven, would constitute breaches of the bond for which the defendants would be liable. Judgment reversed and cause remanded. Reversed and remanded.