United States Fidelity & Guaranty Co. v. Henderson

55 S.W.2d 639

Opinion

HALL, C. J.

Glen Dale and Earline Henderson, the in fant defendants in this case, through their guardian ad litem, W. M. Lewright, have filed a motion to issue mandate without payment of costs. Attached to the motion is an affidavit by guardian ad litem, Lewright, reciting that said minors are wholly unable to pay the costs or to give security therefor.

While it is true that a guardian ad litem is not chargeable personally with the costs of the suit taxed against his ward, because his connection with the case is imposed by the order of court, it appears that Gladys L. Henderson (Wolf) by cross-action as next friend for her minor children sought to.recover for herself and said minors in this suit.

R. S. art. 1994 expressly provides that a next friend shall, when required, give security for costs or make an affidavit in lieu thereof, and the courts have held that such next friend is liable for the costs incurred by an infant party to a suit. Galveston Oil Co. v. Thompson, 76 Tex. 235,13 S. W. 60; John son v. Taylor, 43 Tex. 121; Biggins v. G., C. & S. F. Ry. (Tex. Civ. App.) 110 S. W. 561.

Since the mother is liable for the costs under this statute, the guardian ad litem’s motion to issue mandate without payment of costs must be overruled.