Opinion
No. 2291.
June 22, 1920. Rehearing Denied July 3, 1920.
Appeal from Hopkins County Court; T. J. Tucker, Judge.
Suit by Robert Gross and others against L. R. Griffin and others. From an order denying a temporary injunction, plaintiffs appeal. Affirmed.
The appellants brought suit against the appellees to vacate a judgment theretofore rendered in the county court, and to enjoin the execution of the same on the ground of its invalidity. And the appeal is from an order of the county judge refusing to grant a temporary injunction asked for by the appellants.
It appears that L. R. Griffin sued the appellants in the justice court for damages for conversion of certain cotton seed, and a judgment was rendered in favor of the plaintiff. The defendants in that suit appealed the case to the county court, and a judgment was rendered in that court in favor of the plaintiff. The defendants pleaded in abatement of the suit in the justice and county courts that the plaintiff was a minor and could not sue in his own name, but only by a next friend. The defendants also set up, as a defense, that they had a prior lien to the plaintiff's lien on the cotton seed which they were charged by plaintiff's petition to have converted. The court denied the plea in abatement, and rendered judgment on the merits in favor of the plaintiff. After the final adjournment of the term of the county court, the defendants in that suit, and who are the appellants here, filed the present suit, which is an original action, to vacate the judgment upon the ground:
"That said judgment is void and unenforceable because said defendant L. R. Griffin is and was at the time of the institution, trial and verdict herein a minor under the age of 21 years, and that he never had his disabilities removed, and that he should have brought the suit by next friend, which he did not do."
The defense set up in the instant suit is the same defense pleaded in the former trial.
G. H. Crane, of Sulphur Springs, for appellants.
R. B. Keasler, of Sulphur Springs, for appellees,
The court, it appears, determined in the original trial both that the plea in abatement should be overruled and that the defendants' defense of priority of lien on the cotton seed should not prevail. The instant suit to vacate that original judgment is in effect an effort to try the same questions a second time. The instant proceeding, though, is based upon the contention, as pleaded that the original judgment was void because there was a lack of representation of the minor plaintiff by a next friend. But is the judgment in the original case void, as pleaded? It is not an absolute prerequisite to jurisdiction of an action by a minor that he should sue by next friend, but it is a matter entirely of procedure; and the fact that the minor plaintiff was without such representation makes the judgment merely voidable at the instance of the minor and not void. Montgomery v. Carleton, 56 Tex. 361; Martin v. Weyman, 26 Tex. 460; 14 R.C.L. p. 286. And upon the ground that such judgment is not void a plea in a abatement that the plaintiff is a minor and sued without a next friend is waived by the adult defendant pleading to the merits of the suit. Moke v. Fellman, 17 Tex. 367, 67 Am.Dec. 656. And we cannot say from the record that the refusal of the temporary injunction was not upon that particular ground.
It is concluded that the trial judge did not err in refusing the temporary injunction, and that the judgment should be affirmed.