105 S.W. 334 | Tex. App. | 1907
This suit was brought and prosecuted in the District Court of Red River County by Charley Lewis, a minor eleven years of age, by his next friend, James Jackson. A trial resulted in a verdict and judgment in favor of the appellee. Appellant gave notice of an appeal, and, in lieu of a bond, is prosecuting same on an affidavit showing his inability to pay the costs of an appeal or to give security therefor, as provided by art. 1401, Sayles' Stat. The case is now before us on a motion made by appellee to dismiss the appeal on the ground that the affidavit in lieu of a bond having been made by the minor is not sufficient. Appellee insists that the rule which denies to the minor the right alone to prosecute a suit and requires him to sue by his next friend, operates to make the next friend responsible for the costs of the litigation; and that therefore an affidavit in lieu of a bond on appeal, which fails to show that the next friend is unable to pay the costs of such appeal or give security therefor, will not confer on an Appellate Court jurisdiction of an appeal.
In many jurisdictions it has been held that a judgment for costs *426
may be rendered against the next friend, if the infant plaintiff fails in his suit. (5 Ency. Plead Prac., 155, 156.) And the Supreme Court of this State, in Johnson v. Taylor,
Appeal dismissed.