Opinion
No. 7142.
Decided May 3, 1939.
Moot Case — Assignments of Error — Costs.
Where a cause has become moot, the questions presented by the assignments of error have become abstract and will not be decided for the purpose of ascertaining liability of costs.
Error to the Court of Civil Appeals for the Fourth District, in an appeal from Kerr County.
Suit originated in the application for the complete removal of the proceedings in the matter of the guardianship of Marguerite Hersey, a non compus mentis, from Kerr County, Texas, where it was pending, to Wichita County, where, as alleged in the petition the ward, both by the acts of her guardian, Effie Holland, and her own acts, had become a bona fide resident. The application was contested by Wm. T. Bailey, a cousin, Carrie A. France, an aunt and nearest relative of the ward, and Will A. Morriss, Sr., an attorney who had represented the ward in previous proceedings affecting her status and estate. Upon trial in the probate court the application was granted and the guardianship proceeding were ordered transferred to Wichita County. Upon appeal to the district court the application for removal was denied. This judgment was affirmed by the Court of Civil Appeals, 93 S.W.2d 810, and the guardian has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section B, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Judgments of both courts set aside and the cause dismissed, with costs in all courts taxed against plaintiff in error.
Kilgore Rogers, of Wichita Falls, for plaintiff in error.
Morriss Morriss, of San Antonio, for defendant in error.
This cause originated in the filing of Mrs. Effie Holland, guardian of the person of Marguerite Hersey, a person of unsound mind, of an application for the complete removal of the guardianship from Kerr County, where the guardianship proceedings were pending, to Wichita County, it being alleged in the application that the ward, both by acts of the guardian of the person and by her own acts, had become a bona fide resident of Wichita County. Removal of the guardianship was sought in accordance with the provisions of Chapter 47, Acts Regular Session, 43rd Legislature (Article 4295a, Vernon's Annotated Texas Civil Statutes). The application was contested by defendants in error, and after trial before a jury in district court, to which the cause was appealed from the county court, judgment was rendered denying the application. The Court of Civil Appeals affirmed the judgment of the district court. 93 S.W.2d 810.
Defendants in error have filed a motion to dismiss the cause, alleging that the cause has become moot since the granting of the application for writ of error. The facts set out in the motion and supported by affidavits are that plaintiff in error Mrs. Effie Holland on April 10, 1937, married R. S. Howell, a resident of Bexar County, and thereupon changed her place of residence from Wichita County to Bexar County, and continuously resided in Bexar County until she died there on May 29, 1937; and that Mrs. Howell took the ward, Marguerite Hersey, from Wichita County to Bexar County in April, 1937, from which time the ward has remained and yet remains in Bexar County. Answer filed by the attorneys for plaintiff in error to the motion to dismiss does not controvert the foregoing facts. The only contention made in the answer is that in the event of dismissal costs incident to the appeal should be taxed against defendants in error because the assignments in the application for writ of error are well taken.
It is apparent that the cause, the application for the removal of the guardianship proceedings to Wichita County, has become moot. This being true, the questions presented by the assignments of error have become abstract and will not be decided for the purpose of ascertaining liability for costs. Lacoste v. Duffy, 49 Tex. 767; 30 Am. Rep. 122; Ledbetter v. Ledbetter, 229 S.W. 576.
The judgments of the Court of Civil Appeals and the trial courts are set aside and the cause is dismissed. Costs in this Court, the Court of Civil Appeals and the trial courts are taxed against plaintiff in error.
Opinion adopted by the Supreme Court May 3, 1939.