Wells v. Simmons

• Decision Date: 11 December 1906
• Parties: WELLS . v. SIMMONS et al.
• Court: West Virginia Supreme Court

55 S.E. 990

61 W.Va. 105

WELLS .

v.SIMMONS et al.

Supreme Court of Appeals of West Virginia.

Dec. 11, 1906.

Equity—Pleamng—Demubreb.

A bill avers that the plaintiff had been appointed, by a clerk of the county court, guardian of an infant, and files an order made by tne clerk. Even though the order, taken alone, may not fully prove the appointment, yet if it does not contradict such averment of the bill, that averment is taken for true on demurrer.

[Ed. Note.—For cases in point see Cent. Diayol. 19, Equity, § 494.]

(Syllabus by the Court.)

Appeal from Circuit Court Roane County.

Bill by H. B. Wells, guardian, against Minnie B. Simmons and others. Decree for defendants, and plaintiff appeals. Reversed.

Pendleton & Boggess, for appellant.

Warren Miller and J. M. Harper, for appellees.

BRANNON, J. H B. Wells, as guardian of Earl Simmons, filed in the circuit court of Roane county his petition under Code 1899, c 83, § 12 [Code 1906, § 3239], seeking aitthority to sell a certain Interest of the infant In oil and gas in a tract of land, which petition was dismissed on demurrer, and Wells appealed.

The first matter we meet Is a motion made by the guardian ad litem, Minnie B. Simmons, to dismiss the appeal. This motion is based on these facts. J. M. Simmons, father of the infant, left a will appointing his widow, Minnie, testamentary guardian for his three children, Earl being one of them. Six years after the probate of the will and five after the appointment of Wells as guardian of Earl Simmons, Minnie B. Simmons went before the clerk of the county court and accepted the testamentary guardianship under said will, and then, as guardian, filed In said court a petition seeking authority to lease the same oil and gas interest of Earl Simmons as the proceeding of Wells sought to sell, and obtained a decree authorizing her to lease said oil and gas interest, and she did lease, and the lease was confirmed. The petition of Minnie B. Simmons was filed after that of Wells. Minnie B. Simmons claims that her proceeding to lease has the effect to render the proceeding of Wells useless, as It has disposed of the interest of the infant, and left nothing to be decided on the appeal of Wells, and therefore that appeal must be dismissed as if involving a moot question. We cannot accede to this position. The proceeding of Minnie B. Simmons as guardian is In her name, that of Wells in his name as guardian, and Wells is no party as guardian to her suit. It is another suit. Nor is sh...