Horton v. Horton , 1924 Tex. App. LEXIS 622 ( 1924 )

WILLSON, C. J.

(after stating the facts as above). Appellants seem to have overlooked provisions of the statute applicable to the proceeding they commenced, and to have treated same as controlled, 'instead, by the provisions of articles 4238 to 4255, forming chapter 16, tit. 64, Vernon’s Sayles’ Statutes, and both the county and district courts seem to have adopted th,at view of the proceeding. As we understand the provisions of that chapter, they do not apply where, as here, a person presents an application to be appointed guardian of a person of unsound mind; but they apply only when tbe county judge, no one haying applied for appointment as guardian, is called upon to act on information given him that there is in his county such a person without a guardian.

An application for appointment as guardian of a person of unsound mind may be made by any one (article 4062, Vernon’s Sayles’ Statutes); and, when such an application is refused by the county court and the person mating it considers himself aggrieved by such refusal, he had a right to appeal to the district court without bond (article 4290, Vernon’s Sayles’ Statutes). Appellants made such' an application and considered themselves aggrieved by the refusal of the county court to grant it. Hence they had a right to prosecute an appeal to the district court. All that was necessary for them to do to perfect such an appeal was to cause “an entry of notice thereof to be made on the record.” Article 4291, Vernon’s Sayles’ Statutes. As they did that (a transcript of the proceedings in the county court having been transmitted to the district court), they were entitled to a trial of the case de novo in the latter court. Article 4299, Vernon’s Sayles’ Statutes. As they were, that court erred when he denied them such a trial and dismissed the case for want of jurisdiction to try it.

The judgment is reversed, and the cause is remanded to the district court for a trial de novo there.