Ashe v. Youngst

Decision Date08 March 1887
Citation3 S.W. 454
CourtTexas Supreme Court
PartiesASHE <I>v.</I> YOUNGST and another.

C. Anson Jones, for appellant. E. P. Hamblen, for appellees.

STAYTON, J.

The appellant, being in possession of and claiming certain real estate, brought this action against the appellees, who are minors, to remove cloud from his title. The district court, as required by the statute to do, appointed a guardian ad litem for the minors, who set up a claim for the minors to the property, and defended the action in the district court, and in this court on a former appeal. On the last trial a judgment was rendered in favor of the appellant, and the court fixed and allowed the guardian ad litem a fee of $115 for his services. The judgment provided that execution should issue against the appellees for this sum, as a part of the taxed costs, and that in the event that execution against them be returned nulla bona, that then execution should issue against the appellant for that sum. There was a motion to retax the costs as to this item, which was overruled, and on that motion it was made to appear that the appellees were insolvent, and that the costs could not be collected from them. The only question presented by the assignments of error is as to the correctness of the ruling making the appellant liable for the costs taxed for the services of the guardian ad litem.

The statute provides that "in all cases where a minor may be a defendant to a suit, and it shall be shown to the court that such minor has no guardian within the state, it shall be the duty of the court to appoint a guardian ad litem for such minor, for the purpose of defending such suit, and to allow him a reasonable compensation for his services, to be taxed as part of the costs of the suit." Rev. St. art. 1211. While a judgment rendered against minors not having a guardian, without the appointment of a guardian ad litem to represent them, would not be void if the court had acquired jurisdiction over the persons of the minors, yet the due administration of justice requires the appointment in such cases, and a failure in this respect will require a reversal on appeal. Taylor v. Rowland, 26 Tex. 295. If a judgment be rendered against minors represented by a guardian ad litem, it is proper that the costs taxed for services of the guardian, as other costs, should be taxed against the minors, and collected out of their estates, unless there be some equitable consideration which would authorize the court to impose the costs upon the successful party. Rev. St. arts. 1421, 1434. That was done in this cause, and it is only in the event that the costs cannot be collected out of the...

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16 cases
  • Bruni v. Vidaurri
    • United States
    • Texas Supreme Court
    • November 11, 1942
    ...the record from which it clearly appears that he or they should, in fairness, be required to pay part or all of the fee. Ashe v. Young, 68 Tex. 123, 125, 126, 3 S.W. 454; Holloway v. McIlhenny Co., 77 Tex. 657, 662, 14 S.W. 240; Mitchell v. Mitchell, 80 Tex. 101, 115, 15 S.W. 705; Barker v.......
  • Schwab v. Schlumberger Well Surveying Corp.
    • United States
    • Texas Supreme Court
    • November 27, 1946
    ...10 Words and Phrases, Perm.Ed., p. 331; Roth v. State, 158 Ind. 242, 63 N.E. 460, 469. The word "incur" is defined in Ashe v. Youngst, 68 Tex. 123, 125, 3 S.W. 454, 455, as "`Brought on,' `occasioned' or `caused.'" In view of these definitions no debt was "created" or "incurred" by the rene......
  • Pryor v. Krause
    • United States
    • Texas Court of Appeals
    • April 30, 1914
    ...and the judgment of the lower court is here reformed accordingly. Mitchell v. Mitchell, 80 Tex. 101, 15 S. W. 705; Ashe v. Young, 68 Tex. 123, 3 S. W. 454. There being no reversible error in the record, the judgment of the lower court will be reformed as indicated and affirmed, and it is so ...
  • Pan American National Bank v. Ridgway
    • United States
    • Texas Court of Appeals
    • January 12, 1972
    ...In this respect, attorneys' fees are comparable to the fee of a guardian ad litem and the same rules will be applied. Ashe v. Youngst, 68 Tex. 123, 3 S.W. 454.' 1 141 S.W.2d at By the clear provisions of Rule 677, supra, the costs should have been taxed against defendant, and the court erre......
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