Rabb v. Rogers

• Decision Date: 08 February 1887
• Citation: 3 S.W. 303
• Court: Texas Supreme Court
• Parties: RABB, Minor, by another, Guardian, <I>v.</I> ROGERS and others.

3 S.W. 303

RABB, Minor, by another, Guardian,v.

ROGERS and others.

Supreme Court of Texas.

February 8, 1887.

Appeal from Nueces county.

Stanley Welch, for appellant. McCampbell & Givens, for appellees.

WILLIE, C. J.

This suit was originally brought by Frank Rabb, a minor, by and through his guardian, G. A. Rabb, against M. A. Rogers, as surviving widow in community of John Rabb, deceased, and bonded as such, and also against her upon her bond as guardian of the person and estate of said minor. Allegations of mismanagement and misappropriation of said community property by Mrs. Rogers, as also a waste and conversion of her said ward's property, were made in the petition. The plaintiff asked that she be compelled to account as to these estates, as also the estate of his deceased brother, which he alleged had also been wasted and misapplied by said defendant. Collins, Gussett, C. M. Rogers, and C. C. Heath were made defendants as sureties upon the respective bonds of Mrs. Rogers. C. M. Rogers was also charged as her husband, with whom she had intermarried while in charge of the community property of herself and John Rabb. The pleadings of all the defendants except N. Gussett were general, and special demurrers and general denials. Gussett moved to quash the original citation, but made no other defense so far as the record shows. All the citations were quashed, and the cause was continued to the next term. At that term, the record recites, the general demurrer of the defendants came on to be heard and was sustained, and the plaintiff was allowed to amend his pleadings, which was accordingly done, and the allegations of the original were changed in the following respects: (1) G. A. Rabb was made a party defendant as surety on bond. (2) Allegations of change of residence of M. A. and C. M. Rogers were made. (3) Allegations were made that, since the marriage of defendant M. A. Rogers with C. M. Rogers, March, 1879, no administration has been had on the estate of John Rabb, but that, in violation of law, said defendant Martha A. Rogers, joined by and with the defendant C. M. Rogers, had disposed of a large and valuable portion of said estate, invested the moneys thereof, without authority of law, in property out of Nueces county, had collected and appropriated large sums from pasturage on the lands of said estate, sold and disposed of cattle and stock, and failed and refused to account for the portion of the same, and account and exhibit make of any of the same, of the interest of said minor, Frank Rabb, and openly avowed their intention to appropriate all of said estate, and the portion of said minor to which he is justly entitled. (4) It was averred that said M. A. Rogers exhibited to the probate court a pretended final exhibit, upon which she obtained a discharge; and on twenty-second of November, 1882, plaintiff was appointed guardian, etc., and received from said M. A. Rogers $5,002.63, as shown by final exhibit; that petitioner, as guardian, etc., caused the pretended final exhibit to be reviewed and reconsidered in said probate court, and because the same was false, and failed to account for large sums of money due said Frank Rabb's estate, and was unaccompanied with vouchers, the same was set aside, and defendant M. A. Rogers ordered to make a proper final exhibit of said estate. (5) It was averred that C. M. Rogers had received money for pasturage due the estate, and had failed to account for the minor's portion. This amended petition purports to be the petition of G. A. Rabb, guardian of the estate and person of Frank Rabb, and the recovery sought is for the benefit of said minor.

A few days after this amendment was filed, the district judge, of his own motion, and without any objection having been made by the defendants to its being filed and considered by the court, entered the following order: "It appearing to the court that, on a former day of this term, a general demurrer to plaintiff's petition was sustained, and plaintiff given leave to amend; and it further appearing to the court that, under said leave, plaintiff has filed among the papers of this case an instrument indorsed, `Plaintiff's first amended original petition,' which upon examination is considered by the court not such an amendment as can be filed herein, but instead is considered by the court as the institution of an entirely new and distinct suit, entitling defendants to full service of citation, as in other cases, — wherefore, the plaintiff declining to further amend, and failing to ask for service upon said defendants under his said amendment, it is therefore considered by the court that said original cause, No. 1,600, be, and the same is hereby, dismissed, and that defendants go hence without day, and that said defendants recover of said plaintiff all costs in this behalf expended, for which let execution issue." Whereupon the cause was dismissed, and from this judgment of dismissal the present appeal is taken.

This judgment is sought to be sustained here upon the following proposition, viz.: An amended original petition which makes entirely new and different parties plaintiff, and makes additional defendants, and additional demands which would entitle the appellant to a judgment much more onerous than that which was claimed by the original petition, is such an amendment as should require service as in an original suit. But the amended petition did not make a new party plaintiff. The original suit was the suit of F. A. Rabb, minor, by his guardian, G. A. Rabb; the amended petition made it the suit of G. A. Rabb, guardian of Frank Rabb, suing for the benefit of his ward. Each petition was filed for the benefit of the minor alone, was based upon rights which belonged to his estate, and was prosecuted by his guardian; and we can see no substantial difference...