Carlton v. Miller

• Decision Date: 09 March 1893
• Citation: 21 S.W. 697
• Parties: CARLTON et al. v. MILLER.
• Court: Texas Court of Appeals

21 S.W. 697

CARLTON et al. v. MILLER.

Court of Civil Appeals of Texas.

March 9, 1893.

Error from district court, Grayson county; Rich. Maltby, Judge.

Action by J. K. Miller against Rosa Carlton and others to foreclose a vendor's lien and to recover on a promissory note. Judgment was entered by default against defendants, and they bring error. Reversed.

W. W. Wilkins and R. R. Hazlewood, for plaintiffs in error. Brown & Bliss, for defendant in error.

HEAD, J.

This writ of error is prosecuted to reverse a judgment by default rendered on the 19th of May, 1883, in favor of defendant in error against Mollie Shockley for the sum of $441.71, and foreclosing the vendor's lien on block 42 in the city of Denison. The original petition in the case in which the judgment was rendered alleged that on the 17th of January, 1877, L. W. Carlton and Mollie Carlton, his wife, executed the note sued on, since which L. W. Carlton has died, leaving surviving him his said wife and three minor children, whose given names were unknown to plaintiff, but all of whom resided in Grayson county, Tex.; that L. W. Carlton died intestate, and there had been no administration of his estate. This petition contains no distinct averment that the note sued on was given for the land upon which the lien was foreclosed, but the note was copied in the petition, and it recited this fact, and also that it was secured by a deed of trust on said property; and the prayer of the petition was for judgment for the debt, interest, and costs, and for a foreclosure of his lien upon said land, and for general and special relief. The citation commanded the sheriff to summon Mollie Carlton, ____ Carlton, ____ Carlton, and ____ Carlton. The return on the citation shows that it was executed on the 11th day of February, 1882, by delivering to Curtis A. Carlton, Rosa Carlton, Ernest Carlton, and Mollie Carlton, alias Mollie Shockley, each in person, a true copy of the citation. On September 12, 1882, the case seems to have been dismissed by the court upon its own motion for want of prosecution. On December 20, 1882, and at the same term of the court at which the dismissal was had, the court, on motion of the plaintiff, without notice to the defendants, reinstated the case. On March 5, 1883, defendant in error filed an amended original petition, alleging the loss of the note by his attorney, and that since the institution of the suit the defendant Mollie Carlton had married William Shockley; that the given names of the other defendants were as stated in the sheriff's return; that the note was given for a part of the purchase money of block 42 in the city of Denison; and concluded with a prayer or citation to the defendants to answer said amended petition, for the appointment of a guardian ad litem for the minor defendants, and for judgment for his debt and foreclosure of his lien. At the same term of the court J. R. Cox was appointed guardian ad litem as prayed for in the petition, and answered for the minors, denying all the allegations in the petition, "except the making and executing of the note and the purchase of the land mentioned;" and on the next day judgment by default was rendered in favor of plaintiff for the balance due on the note against the defendant Mollie Shockley, and foreclosing the vendor's lien as above set forth.

The defendant in error moves to dismiss the writ of error upon the ground that plaintiffs in error are seeking to prosecute the same by a next friend, instead of by their guardian ad litem, appointed by the court to represent their interests in the controversy, the contention being that he alone has the right to say whether or not the case shall be brought for revision to this court. The question presented is not without difficulty, but we are of opinion that the motion is not well taken. Statutes regulating the practice in suits instituted in behalf of or against infants are generally enacted for their protection, and are not to be used to their injury; they being generally regarded as wards of the court, whose interests are not to be sacrificed through unnecessary technicalities. In Robson v. Osborn, 13 Tex. 298, it is said: "It seems that in general any one who will undertake the office may be the prochein ami of an infant, and may maintain the suit in that capacity, if it appears to the court to be for the benefit of the infant; and although an infant has a guardian assigned him by the court, or appointed by will, yet where he is plaintiff, the course in chancery, it is said, is not to call the guardian by that name, but to call him the next friend. Bradley v. Amidon, 10 Paige, 235; Daniell, Ch. Pr. 89. An infant may sue by his next friend, notwithstanding he have a guardian, if the guardian do not dissent. Thomas v. Dike, 11 Vt. 273; Daniell, Ch. Pr. c. 3, pt. 2, tit. `Infants.' A fortiori, he may do so...