Fortson v. Golden State Mutual Life Insurance Co.

398 S.W.2d 437, 1966 Tex. App. LEXIS 3002

Opinion

BELL, Chief Justice.

Appellant in her individual capacity originally filed suit against the insurance company and Katie Thomas, the surviving wife of deceased, Fred E. Thomas, to recover the proceeds of a life insurance policy. Thereafter, after answers filed by such defendants and a cross-action by Katie Thomas, appellant filed an amended pleading in which she sued as next friend for the two minor children of deceased. Thereafter, on September 23, 1965, the trial court removed appellant as next friend and appointed W. B. Baker, an attorney, to represent the minors. Appellant excepted to this order and gave notice of appeal. On October 26, 1965, a judgment was rendered which approved a settlement, the judgment awarding each minor $1,000.00. Katie Thomas, the beneficiary in the policy was given judgment for $10,500.00. W. B. Baker represented the minors. It does not appear that appellant or her counsel in any way participated in the proceeding resulting in the entry of the judgment. The next day, however, appellant gave notice of appeal and thereafter timely filed an appeal bond.

Appellees have filed a motion to dismiss the appeal because, among other reasons, appellant has no justiciable interest. She was, after she filed an amended petition, a party only in her capacity as next friend. She was removed as next friend by the court.

We sustain the motion to dismiss the appeal. Henderson et al. v. Shell Oil Company et al., 182 S.W.2d 994, (S.Ct.) ; Cannon v. Hemphill, 7 Tex. 184.

Appellees’ motion to tax appellant with 10% of the amount of the judgment for taking a frivolous appeal is refused.

All other motions are overruled. Appeal dismissed.