Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-03-15
COURT OF APPEALS.
Full Text Of Oscesioas Rendered In me Fort
Worth District

No. rs. Rosa Carlton 81 NJ. nla,nt,rs IN
tllof. VS.. J. X Miller. Attendant in
sar hfror ftcm district cOurt, Gray
OPINION.
MS auls Wit OF error Is prosecuted 60 NJ.
verse JUDGMENT BY default rendered on
dant IN error against MOiHe Shoetiev ~
the sum of Si4i,Tl. aud forecloeinf fhe
4en9ors lien on block AZ Ia the city of
i|tnsQh The original petiiiot IA the case
IN which the Judgment was renaerea m
,esel that on the iTih 81 Iarrarv 1S55
- W. Carlton and Mullie Carlton. his wlfe'
NV Wy note sued on, siuce which
- " carton has died leaving surviving
MN his said wife and three rtne- cin.
g,Nn whose names We're unknown 10 Rein.
county, 40 fn on whom whom resided m Grayson
lnlesthte and there bad been no adrnini.
suauon fhis estate. The p,,fitiou cnn.
s sus NO distinct ayermcnt that the note
sHeu ON was given for the land upon which
tne lien was forccloscd, but the note was
f eir,i ar ~ tne petition and e recitcd this
da NV, asa also That Y was secured by
PRAYER Of the petition was for Judgment
~ lne ucpt interest and costs aud Tor
y dtof s Of his lion upon said lapd
~ ~ wi GENERAL and special relief 1ho
Stntlon commanded the sheriff ~ summon
Mllhe Carlton--C arlton Carlton and Carl.
" ne return ON the citation shows that
=, was SAecuted on the ilth DAY OF Fuhru.
hty' lns2. by delivering 10 Curtis A tnri.
,9n hosn Carlton and Noble Carlton alias
e Moule shQcley euch In person true
Vgp4 OF the citNtioa. ON Sep L. 1Sgl,
the ease seems TO have been dtsmis,od by
we court upon It's own motion FOR want
on prosecution. on Dec, 20. 1851 ana ut
smsa w Sys nS 81 R ss count count a. w ,oo tSs
tne plaintiff without notice 10 the dcfon.
gants remstatcd the case ON March s.
d dSss 3eiendiant In error Med an amended
vlklhH petition alleging the loss Of the
nulc IN ms attorneys and that since tho
~ ttunion OF the suit the defendant, Mol.
ie ,arlton, had married William Shockiey;
t tna. 'nc gwen names Of the other defcn-
dants were as stated IN the sherins ~.
turli that the motto was given for part
on Tue purchase money u block az In the
PRAYER for citation 20 the defendants to an.
sMcr SAID amended petition. fur the np.
n ls,l OF a guardian nd litem for the
his debt and foreclosure OF his Ion AZ
lne same term OF the court ]. r., Cox was
appointed guardian al htcm as prayed FOR
nora denying all the allegations ia the
heu' l9h Except the making and cxocut-
| ing OF the note and the purchase ~ the
ment by default was rendered n hvor
| OF plaintiff for the balance
dpe on the note against The defendant,
Mobile ShOckey, and foreclosing the ven
doris lien as above SGT forth.
The defendant Ina error moves 10 dismiss
me Wit OF error upon The ground that
| plaintiffs Ia error are seeking To prosecute
The same by a next friend instoad OF by
| their guardian nd htcm appointed by the
| court 10 represent their Interests In the
e eIdnr the contention being that he
the case shall be- brought for revision TO
| thlN court The question presented Is not
hat i1i bc mniion I Dg' efS OF OPINION
| regulating the practice IN suits instituted
| IN behalf OF or against infants are general.
| " enacted for their protection ana are not
| 10 De- used 90 their injury. they being rcncr-
| ally regarded as wards Of the court whose
| interests are not Ia be sacrificed through
| unnecessary. technlcallucs, IN Robson W.
| Osborne, w Texas, Dos lt Is said "lt
| seems that. In general, any one who Will
| undertake the Office may bu the ppchen
| amy OF an infant; and may maintain the
SUIT In that capacity, IL II appears 10 the
court 10 be- FOR the henoat OF the Infant
| And although am infant has guardian
assigned MN by the court or appointed by
| VIII. yet where he Is plaintiff, the course
| I'm Chanccry II Is said Is not 10 call the
| guardian by that name, but 60 call him
| the next friend 90 Paige. 235 Daniels
| Chy Pr, 81 An Infant may sue by his
next friend Notwithstanding hr have a
guardian II tie guardian do not descent.
"a. ~ Nerm. Il. 273; DAM. Chg. pr On. O.
do ~ where the guardian has left the
J country, ana has failed Ia the performance
| Of the duties which deyolyed upon him fOi
the preservation " the rights Of his ward.
The guardian al Item has lef Ky ' Sountr r
but IL seems that be has failed 10 bring
| llit case ptlhff lnlh court Tor a period ui
about eight years from which Il may be
| Inferred that be- has no Intention OF doing
40. IL does not appear however, from
the record that he objects 10 the prosecu.
| ti0n Of this writ Of error. ana we are OF
| opinion that under the circumstances the
| the minors tGninst whom the Judgment was
rendered should not be denied the right
| 90 hearing In this court when thelI
| Interests are presented by u prochem amy
| We believe these views are sustained 10y
| the reasoning of our supreme court after
NNHHHI HN.aHH U.NHa HHNHH
case OF Brooks vs. clark % Texas 100
| The motion 10 dismiss the writ OF error
VIII therefore De oyelrulcd.
| Upon III merits the case presents The
anomaly Of plaintiffs In error bringing be-
fore us FOR revision a Judgment which thpy
| Wlegc IL not final because 70 does moi
dispose of an tina parties 10 the controversy
| IN the Judgment ns commended FOR by then
| Is rot hnal we would have no jurisdiction
60 net nor dismiss the writ of error nl
their cost; but upon examination we mr.,
~ does finally dispose OF The entire sub
| iect matter OF controversy aB 10 all OF tho
parties, The plulutlm Ia the court below
1id not seek a personal Judgment against
| any Of the defendants except Mrs. NOBLE
Shoclley against whom Il was rendered
| aud the defendant, william Shockley wa,
his cO-defendaut, nnd the other defendant,
were made parties ~ the heirs Of tht
deceased J.. w. Carlton, no judgment beinl
sought against them except a foreclOsur,
| Of the vendors lien upon the land FOL
which the note WAS given and we thni
the effect Of the Judgment was 10 fore
| close the Hen against all OF the parties q
the suit although they were not specifically
named Ia the clause granting such fore
| closure,
Plaintiffs IN error IN their nrst PROPOSE
ton under their FIRST assignment, contend
that the judgment by default against then
was erroneous because their given NAMES
were not stated in the original petition
nor in the citation served upon them and
no citation was issued upon or SERVED
had Under the amended petition and We
| believe this objection 20 the judgment a
be well taken. The original petition ul
legged that these parties resided IN the
aud gave no reason why thoir names could
NOT be- asccrtuincd. We have a statute
which authorizes a suit against unknown
heirs and IN such cs-.a ~ , zee y, u haa by
| sounl service n sought one Of the require
nents OF the statutes ~ that the citation
shall contain Tie names OF ail the parties
H. s. Art 1915. Tho question presented
~ M Al NOT whether The Judgment for IN,
/ reaHons here indicated would be void upon
| collateral attack; but me question W., wa
the proceeding REGULAR we are eQnslrhih
| I'd to hold that II was not Appellee seek
fo sustain the Judgment upon The grOun,
| maj In al much As II cuntains a recitn
| fLaf an the defendants hnn been cited
Tor personal service THIS shVuld pe pfesum
| ed ana that we should pr(Nlme that ser
/ ,lce had been mad upon UAamended pc
| fition M prayed for therein, Nut this 20
eifiou cannot boz sustained IN sustain
Judgment by default on appeal No recofl
rs9ital ln the Judgment Burdiit rNiioWtl
al Texae. 4G6. Fitch 70 Boyer, % Nexas
! 3t4t Wheeler W. Ahrenneaki y Ma
1896. Treadwy ~ hsstsuinb 4t NJ
pnsides h win be observed that iuds
mont by default WAS taken az the ham'
term az which ne ls.ii'lN,si.l W.. ~ N.