Henderson v. Shell Oil Co.

• Decision Date: 25 October 1944
• Docket Number: No. A-168.,A-168.
• Citation: 182 S.W.2d 994
• Parties: HENDERSON et al. v. SHELL OIL CO., Inc., et al.
• Court: Texas Supreme Court

182 S.W.2d 994

HENDERSON et al. v. SHELL OIL CO., Inc., et al.

No. A-168.

Supreme Court of Texas.

October 25, 1944.

Rehearing Denied November 22, 1944.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Petition by Hugh Henderson, individually, and suing by and through Orson H. Lee,

his next friend, against Shell Oil Company, Inc., and others, for writ of certiorari, and to have certain acts, decrees, orders, and judgments of the probate court set aside, and to have certain leases and a mineral deed canceled. To review a judgment of the Court of Civil Appeals, 179 S.W.2d 386, which affirmed an adverse judgment, the petitioners bring error.

Judgment of Court of Civil Appeals reversed and the appeal dismissed.

McDonald & Anderson, Nelson, Montgomery & Robertson and Ernest Robertson, all of Wichita Falls, and John H. Haley, of Bowling Green, Mo., for plaintiffs in error.

Stine, Bunting & Stine, of Henrietta, John E. Kilgore, of Dallas, and Geo. W. Cunningham, and W. D. Masterson, Jr., both of Tulsa, Okl., for defendants in error.

HICKMAN, Commissioner.

This suit was instituted by Hugh Henderson, non compos mentis, through Orson H. Lee as next friend, to set aside an oil and gas lease and a sale of a mineral interest in land owned by him. Various relatives of Hugh Henderson, not parties to the litigation, as well as one of the parties thereto, filed motions praying for a decree that Orson H. Lee was not a fit and proper person to prosecute the suit as next friend and further praying that the proceeding be dismissed or, in the alternative that the Court appoint a fit and suitable person to act therein as next friend. After a hearing the Court decreed that Lee was not a suitable or proper person to act as next friend and further decreed that "* * * said Orson H. Lee be and he is hereby removed as next friend of said Hugh Henderson and he will not be permitted to conduct this litigation on behalf of the said Hugh Henderson." In the same order the Court appointed J. Willard Gragg to act as such next friend and instructed said Gragg "to advise himself in the premises, and to take such further action, if any, as the true interests of the said Hugh Henderson may require." From this order Orson H. Lee prosecuted an appeal to the Court of Civil Appeals at Fort Worth. That court held that the order was reviewable on appeal and considered the assigned errors, but finding that no reversible error was committed by the trial court, it affirmed the case, one of the justices dissenting on rehearing. 179 S.W.2d 386.

Writ of error was granted by this Court, not to review the rulings of the Court of Civil Appeals on the questions discussed in its opinion, but because this Court was of the tentative opinion that the appeal should have been dismissed for want of jurisdiction. That tentative opinion has become our fixed opinion.

This case has never been tried on its merits. So far as we are advised it is still pending in the trial court. The real party plaintiff is Hugh Henderson, non compos mentis, and not Orson H. Lee, Safeway Stores v. Rutherford, 130 Tex. 465, 111 S.W.2d 688; Martin v. Weyman, 26 Tex. 460; Gulf,...