Ex parte Taylor, 5301
| Decision Date | 11 March 1959 |
| Docket Number | No. 5301,5301 |
| Citation | 322 S.W.2d 309 |
| Parties | Ex parte Albert Earl TAYLOR, Jr., and Joy Lynn Taylor, Minors. |
| Court | Texas Court of Appeals |
Will Hadden, Odessa, for appellant.
George L. Fowlder, Odessa, for appellees.
This is an appeal from an order of the District Court of Ector County, granting the ex parte application of two minor children, Albert Earl Taylor, Jr., a boy six years old, and Joy Lynn Taylor, a girl five years old, brought in their behalf by appellees, T. S. Catlett and wife, Joyce Elaine Taylor Catlett, as next friend, to change the name of said minor children under the provisions of Article 5929, Vrnon's Ann.Civil Statutes of Texas.
Appellant Albert Earl Taylor and appellee Joyce Elaine Taylor were divorced in the early part of 1955, and the custody of their two minor children was awarded to Joyce Elaine Taylor. After the divorce, Mrs. Taylor married T. S. Catlett, and some two years later appellees brought this proceeding in behalf of said minors seeking to change the names of the children from 'Taylor' to 'Catlett', alleging in support of the application that it would be advantageous and for the best interests of said minors to have their surname changed to conform to that of appellees, their natural mother and her husband, with whom they made their home.
No citation issued and none was required, but appellant Albert Earl Taylor, intervenor below, learned for the proceeding and filed his intervention setting up a plea in bar on the grounds that the issue of change of last names of said minor children had already been decided against appellees in cause No. 250 on the adoption docket of the said district court in Ector County. Appellant contends that the trial court, having denied appellees' application to adopt said minor children in the prior cause, also denied appellees' ancillary plea for change of name of said minor children contained in the adoption petition, and that the judgment of the trial court in the adoption case is res adjudicata. In addition to the plea in bar, appellant specially denied that it was in the best interests of either minor to have their name changed.
After a hearing before the court, appellant's plea in bar was overruled and petitioners' application to change the name of said minor children was granted as prayed for.
Appellant brings five points of error. In his first point appellant contends that the trial court erred in overruling the plea in bar. We are unable to agree with this contention, it being well settled that when a suit is instituted in behalf of minors by next friend, the minors, and not the next friend, are the real plaintiffs. McDonna v. Wells, 1 Posey, Unrep.Cas. 35; Long v. Behan, 19 Tex.Civ.App., 325, 48 S.W. 555; Gulf, C. & S. F. Ry. Co. v. Styron, 66 Tex. 421, 1 S.W. 161. The proceedings had in the prior adoption case in which the prayer for change of name was merely ancillary to the adoption, the children themselves being the object of the adoption proceedings but not parties thereto, it follows that such prior ex parte proceeding would not be res adjudicata as to the right of such minors to bring this action for change of name by next friend, as authorized by Article 5929. We are of the opinion that the trial court did not err in overruling appellant's plea in bar.
By second point, appellant urges that the trial court erred in refusing to permit appellant to perfect a bill of exceptions based on the court's rulings on the following questions, as taken from appellant's brief:
'The Court: Sustain the objection.
'The Court: For what purpose do you want to ask the questions?
'Mr. Hadden: The whole matter is relevant to this matter.
'The Court: I will overrule your objection.
Where testimony of a witness is excluded on objection to a question, appellant should show by bill of exceptions what...
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