Unknown Heirs of Tutt v. Morgan

ON MOTION TO DISMISS. This is a motion to dismiss appeal, because appellants have not filed appeal bonds in the court below.

In so far as it relates to Baker and wife, Mayfield and wife, Alexander and wife, and Westlake and wife, the motion is based upon the erroneous idea that the parties named appear in the record as parties appellant. They do not appear from the record as having appealed from the judgment of the court below; and they would not be considered as appellants, regardless of the motion to dismiss.

As to appellant Maud Holt, who has appealed through her guardian ad litem, the motion is not well taken and should be overruled.

Article 1408, Revised Statutes, provides that "executors, administrators, and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity." This statute is broad enough to cover guardians ad litem. Schonfield v. Turner, 6 S.W. Rep., 628; Butler v. Davis, 52 Tex. 74.

As to the appeal attempted to be taken by the unknown heirs of R.B. Tutt, and by the nonresidents Charles Wynn and Smith Wynn, the motion to dismiss is well taken, and is sustained. It is contended that, because the record recites that the nonresidents are minors, and that the record shows that there was an attorney appointed to represent them, he must be trated as a guardian ad litem. This position can not be sustained.

The court would have no authority to appoint a guardian without personal service upon the minors; and it is sufficient to say that the court did not attempt to appoint any such guardian for the nonresidents involved in this case. The statute authorizing appeals from final judgments of trial courts gives no authority for an appeal to be taken by unknown heirs and nonresidents in any such manner as is attempted in this case, namely, through an attorney, who gives no appeal bond for them. In allowing appeals without bond, this court will not go beyond the exceptions named in the statute.

Ordered accordingly.

ON FINAL HEARING.