(dissenting')-
I do not concur in the opinion of the majority. We have before us not only the record on this appeal but also the record on a former appeal of this same case, of which we should take judicial notice, and from these two records, in my opinion, the following undisputed facts appear:
On July 19, 1951, Owen E. Caldcleugh filed an affidavit in the County Court of *437Bexar County, in Cause No. 75260, alleging- that Janie Barr was a person of unsound mind.
On July 23, 1951, a hearing was had and a jury found that Janie Barr was of unsound mind. This verdict was received and noted, but no judgment was spread upon the minutes of the County Court decreeing Janie Barr to be a person of unsound mind.
On August 13, 1951, Owen E. Caldcleugh filed in the County Court, in Cause No. 75453, an application to have Mrs. Gladys McGinnis appointed guardian of the person and estate of Janie Barr, a person of unsound mind, and attached affidavits of C. L. McGinnis and O. P. McGinnis to such applications, waving their rights to he appointed guardian of Janie Barr, they being her next of kin, in favor of Mrs. Gladys McGinnis.
On August 28, 1951, Gladys McGinnis was appointed guardian of the person and estate of Janie Barr, non compos mentis, and duly qualified as such guardian.
On October 25, 1951, Gladys McGinnis as guardian of the estate of Janie Barr, N. C. M., filed a suit in the 57th District Court of Bexar County against C. L. McGinnis and William L. McGinnis, in Cause No. F-68803 on the docket of that court, to recover the sum of $10,000 from the defendants.
On January 9, 1952, C. L. McGinnis, William L. McGinnis and Janie Barr, describing themselves as petitioners, filed a motion in Cause No. 75453, being the guardianship proceedings in the County Court, asking that the entire guardianship proceedings be set aside because no judgment had been rendered in the lunacy proceedings. In this motion there was an allegation as follows: “Petitioners are blood relatives and next of kin to the said Jannie Barr, she being the sister of C. L. McGinnis and the Aunt of William L. McGinnis, and petitioners as next of kin of the said Jannie Barr are interested in her welfare and they bring this action for themselves as well as for the benefit of the said Jannie Barr and her estate.” They did not state in what capacity they were attempting to represent Janie Barr, nor did they ask leave of the court to represent her as “Next Friend,” under the provisions of Rule 44, T.R.C.P. They did not ask to be appointed guardian ad litem of her under the provisions of Rule 173, T.R.C.P.
On the 30th day of January, 1952, a motion for judgment nunc pro tunc was filed asking the court to enter judgment in Cause No. 75260, in keeping with the verdict of the jury finding Janie Barr to be a person of unsound mind.
By agreement of the parties, the County Court considered these two motions together and on February 14, 1952, granted the motion for judgment in Cause No. 75260, and denied the motion of petitioners to set aside the guardianship proceedings in Cause No. 75453, from which action of the court petitioners C. L. McGinnis and William L. McGinnis, without mentioning any representative capacity, gave notice of appeal to the 37th District Court of Bexar County. Janie Barr, though one of the petitioners, gave no notice of appeal.
On April 29, 1952, Gladys McGinnis as guardian of the estate of Janie Barr filed in the District Court a motion for summary judgment, which motion was granted on August 21, 1952, from which judgment an appeal was taken to this court by Mary E. McGinnis, independent executrix of the estate of C. Lee McGinnis, deceased, and William L. McGinnis.
On April 22, 1953, this Court reversed the judgment of the district court and remanded the cause to that court. McGinnis v. McGinnis, 257 S.W.2d 786.
On June 26, 1953, a suggestion was filed in the district court that C. Lee McGinnis had died on October 7, 1952.
On September 10, 1953, William L. Mc-Ginnis filed in the district court what he termed his “First Amended Original Petition,” in which for the first time he described himself as “Next Friend” of Janie Barr.
On September 16, 1953, Gladys McGinnis, guardian of the person and estate of Janie *438Barr, filed a motion to strike the pleading filed on September 10, 1953, by William L. McGinnis, and to dismiss the appeal because it was not taken by a person interested in the matter, as required by Art. 4328, Vernon’s Ann.Civ.Stats.
On October 6, 1953, the district court granted the above motion and dismissed the appeal, to which action of the court William L. McGinnis, again not describing himself as acting on behalf of any one else, gave notice of appeal to this Court. In executing the appeal bond he described himself as “Signing individually and as next friend of Jannie Barr and in her behalf.” Mary E. McGinnis, as independent executrix of the estate of C. Lee McGinnis, deceased, did not attempt to join in this appeal.
The correctness of the action of the trial judge in dismissing the appeal depends upon whether or not C. Lee McGinnis and William L. McGinnis, either or both, were persons aggrieved by the judgment of the County Court and therefore entitled to prosecute the appeal to the District Court without bond, as is provided by Article 4328, supra. . ■
I think it is clear that neither C. Lee nor William L. McGinnis, acting 'individually, was a person aggrieved by the judgment of the County Court and entitled to prosecute the appeal to the District Court under the provisions of said Art.'4328, supra. C. Lee McGinnis, if he had not waived his right to be appointed guardian as next of kin, might have had a right to maintain this appeal on the ground that he was_ entitled to be appointed guardian of the estate of Janie Barr, n. c. m. Pruett v. Hamilton, Tex.Civ. App., 263 S.W.2d 193. This was a right personal to: him and it was ended by his death if not by his waiver. William L. Mc-Ginnis, the only appellant before us at this time, was not the next of kin, Janie Barr having another brother living, and William L. McGinnis was not entitled to be appointed guardian, nor does he here make such a contention. Craycroft v. Craycroft, 250 S. W.2d 458; Persky v. Greever, 202 S.W.2d 303.
Neither does the undisputed fact that C. Lee McGinnis and William L. McGinnis were being sued for a large sum of money by Gladys McGinnis, as guardian of the person and estate of Janie Barr, render them persons aggrieved by the judgment appointing her as such guardian. Craycroft v. Craycroft, supra; Persky v. Greever, supra.
This leaves the remaining question as to whether the fact that appellants asserted that they were suing as “next friend” of Janie Barr entitled them to maintain this appeal.
Gladys McGinnis had been appointed guardian of the person and estate of Janie Barr and, no appeal having been taken, had qualified and been so acting for several months when appellants, together with Janie Barr, filed their bill of review to set aside her appointment. Under the record we have appellants claiming to act as “next friend” of Janie Barr, although she had joined individually as one of the petitioners. If it be'conceded that they were attempting to act as "next friend” of Janie Barr in the county court, still they should not be permitted to maintain this appeal. The only authority for acting in the capacity of next friend is provided by Rule 44, T.R.C.P., reading as follows:
“Minors, lunatics, idiots, or persons non compos mentis who have no legal guardian .may-sue and be represented by ‘next friend’ -under the following rules: (Emphasis mine.)
“(1) Such next friend shall have the same rights concerning such suits as guardians have, but shall give secúrity for costs, or affidavits in lieu thereof when required.
“(2) Such next friend or his attorney of record may with'the approval of the court compromise suits and agree to judgments, and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit.”
*439That part of Art. 1994, Vernon’s Ann.Civ. Stats., which was not repealed by the provisions of Rule 44, supra, relates to suits by next friend, but has no application here.
It will readily be seen that only where a person has no guardian may he sue by next friend. Pruett v. Hamilton, 263 S.W.2d 193; Rule 44, supra.
Appellant might have applied to the court to have been appointed guardian ad litem under Rule 173, T.R.C.P., but this he did not do, nor does he even purport to act as a guardian ad litem.
In Henderson v. Applegate, Tex.Civ.App., 203 S.W.2d 548, 552, the Court said:
“Since Rule 173, T.R.C.P., is the only provision of our law authorizing the appointment of guardians ad litem and then only for a defendant when he is one of a class named therein, such rule does not apply to purely probate proceedings not falling within one of the exceptions enumerated in Rule 2, T.R.C.P.”
Not only do our Rules of Civil Procedure not authorize a person to sue as next friend of an insane person or to act as his guardian ad litem in probate proceedings, where he has a legally appointed guardian, but such rule by necessary implication prohibits persons from so suing.
It might be argued that in an extreme case one should be permitted to sue as “next friend” as a matter of necessity, even though the Rules of Civil Procedure are to the contrary. If this be true, then it should be permitted only after leave of the court is applied for and has been granted. Otherwise great confusion could result from first one person and then another summarily superseding the authority of the legally appointed guardian and taking over his duty to represent the ward in all litigation. Here no leave of the court was asked or given to the alleged “next friend” of the ward. It is significant in the case at bar that when appellant first asserted that he was suing as “next friend” of the ward his appeal was immediately dismissed by the trial court.
Especially is this true where the person who attempts to seize control of the ward’s estate and take away from’ the legally appointed guardian his duty to represent the ward in all litigation, is a person being sued by the ward and therefore disqualified to act for such ward, as is provided by Art. 4122, § 5, Vernon’s Ann.Civ.Stats.
Appellant seems to rely heavily upon the cases of Lindly v. Lindly, Tex.Civ.App., 109 S.W. 467, and Home Benefit Association v. Robbins, Tex.Civ.App., 34 S.W.2d 329. These cases are not in point as they are cases in which the insane person did not have a legally appointed guardian and, of course, under such circumstance suit by next friend is authorized by the provisions of Rule 44, T.R.C.P.
I, respectfully dissent from the opinion of the majority.