244 S.W. 286 | Tex. App. | 1922
On March 6, 1920, the probate court of Irion county appointed appellee guardian of the separate estate of her husband, W. D. Sheen. An appeal was taken from that judgment; and the same was confirmed by the district court of Irion county on April 18, 1921. W. D. Sheen has a separate estate of the value of $1,391, in cash. On September 17, 1919, after her husband was again committed to the asylum, and before her appointment as guardian of his separate estate, appellee dismissed her suit for divorce, and paid all costs therein.
It is not always easy to determine just what is fundamental error apparent upon the face of the record, and we prefer to rest our decision in this cause upon its merits. Article
"Those who are themselves, or whose father or mother are parties to a lawsuit, on the result of which the condition of the minor or part of his fortune may depend."
This applies also to the right of a husband or wife to the guardianship of the separate estate, in case the one or the other is adjudged a lunatic.
There is no contention by appellant that appellee is disqualified, except as provided by article 4078, supra. This could not apply in the instant case, because the only suit that the appellee ever had against her husband was that for divorce, which had been dismissed prior to her appointment as guardian. Such being the case, she was entitled as a matter of right to be appointed guardian of the separate estate of her husband. Revised Statutes 1911, art. 4076, supra; Heinemeier v. Arlitt,
Under the undisputed facts in this case, no judgment other than that which was rendered could have been rightfully entered by the trial court; for which reason such judgment is affirmed.
Affirmed.