Wedgworth v. Roberson , 45 S.W.2d 427 ( 1931 )

On Motion to Dismiss the Appeal.

WILLSON, C. J.

It appears in the record that in proceedings in the county court of Tarrant county commenced August 15,1929, by a petition filed by Birdie Roberson who alleged that as ah heir she owned an interest in the estate of Roscoe C. Blackburn, deceased, appellant V. K. Wedgworth, by a judgment rendered July 26, 1930, was removed as administrator of said estate, and Dan E. Lydrick was appointed administrator thereof in his stead. It appears, further, that a like judgment was rendered in the district court on an appeal thereto prosecuted by said V. K. Wedgworth; and appears, further, that the appeal now pending here was prosecuted from said judgment of the district court, and that in prosecuting it Wedgworth did not file a bond entitling him to do so, as he was required to by article 2258, R. S. 1925, unless he was exempt from complying with such requirement by article 2276 of said statutes, providing that an administrator appointed by a court of this state (and Wedgworth was so appointed) “shall not be required to give bond on any appeal or writ of error taken by him in his fiduciary capacity.” The motion to dismiss was on the theory that it appeared Wedgt worth’s appeal was not really, but only ostensibly, In his capacity as administrator, and therefore that he was not entitled to prosecute same without filing the statutory bond. ' We think the motion should be sustained. As we view the record, whether Wedgworth was continued as administrator or not was a mát-ter of concern to him only in his personal capacity. In that view, it was indispensable to a right in him to the review he seeks that he should file the statutory bond. Holman v. Klatt, 34 Tex. Civ. App. 506, 78 S. W. 1088; Hicks v. Oliver (Tex. Civ. App.) 26 S. W. 641; Guest v. Guest, 48 Tex. 210; Lynch v. Bernhardt (Tex. Civ. App.) 201 S. W. 1051; Logan v. Gay, 99 Tex. 603, 90 S. W. 861, 92 S. W. 255.

Other persons than those hereinbefore named sought by intervention to become parties to the suit, but were dismissed therefrom, and none of them are complaining here.

The motion is granted, and the appeal will be dismissed.