joined by Justice Smith, dissenting.
Our practice, with rare exceptions, is for individual justices to take cases in rotation following oral argument and write opinions embodying their personal views of the proper decision to be rendered and reasons therefor prior to actual decision by the court. Upon submission of these tentative opinions to conference, they are approved either absolutely or with changes or rejected or held up for decision until submission by some *115other justice of a dissent or a proposed substitute opinion. If, as often happens, the views of the latter prevail, they become the opinion of the court. The result in such instances usually is that four or three opinions are written by two justices, a successful dissent being converted into a majority opinion and the originally submitted tentative opinion of the court being converted into a dissent.
In the instant case the tentative opinion submitted by the undersigned has thus been superseded and a dissent is accordingly in order, but for obvious reasons of economy of time and because the result and views of the court and the undersigned differ only in respect of the rights of the petitioner, Mrs. King, as distinguished from those of the guardian ad litem of her children, the original tentative opinion is copied below in lieu of a formal dissent, Mr. Justice Smith joining in the conclusions therein expressed.
The subject matter of this original mandamus suit is (a) the procedure of appeals on pauper’s oath and (b) the right, if any,, of guardians ad litem to appeal without bond or pauper’s oath.
Our relators, Mrs. Maudy King in her own right, and Clyde W. Woody, Esq., as guardian ad litem of Mrs. King’s minor children b yan earlier marriage, Earline and Cecil Faye Collier, seek to require our respondents, the clerk and justices of the Amarillo Court of Civil Appeals, to file and accept their appeal record in Cause No. 25798 in the 72nd Judicial District Court, Lubbock County, in which judgment was entered November 26th, 1955, on an instructed verdict against relators as plaintiffs and in favor of our other respondent, Keystone-Fleming Transport, Inc., as defendant. The suit was an action for death of Cecil Collier, an earlier husband of relator Mrs. King and father of minor relators, and was based on the alleged gross negligence of the respondent-defendant Transport Company, employer of the deceased.
The respondent clerk, hpon examination of the transcript (Rule 388, Texas R. Civ. Proc.) refused to file the appeal record when presented, and relators’ consequent petition to the Court of Civil Appeals for mandamus was likewise refused. The groounds of refusal were that: (a) as to Mrs. King individually, an appeal bond, which she filed on January 13th, 1956, over two weeks after expiration of the statutory 30 days from the *116date of the judgment (Rules 354 and 356, Texas R. Civ. Proc.) was ineffective, and her prior efforts to proceed by pauper’s oath (Rule 355) were likewise ineffective; and (b) as to the guardian ad litem, who had filed neither a bond nor pauper’s oath, he was not exempted from these requirements by his alleged fiduciary status. 287 S.W. 2d 293.
Suit 25798 was filed by Mrs. King as next friend of the children (as well as in her own right) but the trial court, at the beginning of the trial, appointed Mr. Woody above mentioned as guardian ad litem upon apprehension of a conflict of interest between the plaintiffs following- a sug-gestion to this effect by the attorney for the respondent-defendant Transport Company, Charles L. Cobb, Esq. Rule 173, Texas R. Civ. Proc.
The trial court judgment (November 26th, 1955, recited relators’ exception and notice of appeal, but no bond (Rule 354) was filed by any of them until Mrs. King sought to file one on January 13th, 1956, as aforesaid, on behalf of herself and the children. Previously, however, on November 29, 1955, Mrs. King had filed a pauper’s oath in lieu of a bond (Rule 355 (a) ) to which, on December 1st, the respondent-defendant Transport Company had filed its contest of her inability to pay (Rule 355 (c) ) sworn to by its above-mentioned attorney, Mr. Cobb.
At the latter time, it appears that Mrs. King had a judgment for some $3000 in her favor against Pan American Insurance Company in a Workmen’s Compensation suit incident to her earlier husband’s death, but she had not received payment, because the named insurance carrier, although held liable to the relators in the trial court and Court of Civil Appeals, had carried to the Supreme Court the issue of liability as between it and another insurer, and while this issue had been finally decided against it in the latter court by refusal of the motion for rehearing of its petition for writ of error on November 16th, 1955 (well before the filing of the pauper’s oath and contest in Cause No. 25798) a “supplemental motion for rehearing” thereafter sent to the court was still “pending” and was not returned until December 19th (18 days after filing of the contest).
Mr. Cobb aforesaid also represented Pan American Insurance Company in the Workmen’s Compensation suit, but evidently the relators were there represented by counsel other than their counsel in Cause No. 25798.
*117Forthwith upon filing of the contest to the pauper’s oath, the judge set the matter for a hearing to be held on December 10th at Lubbock, and the clerk sent a notice thereof to the sheriff of Harris County for service on relators’ counsel, including the guardian ad litem, who had their offices at Houston. For some peculiar reason the sheriff ignored the statement of the street address of counsel on the face of the Precept and after several days’ delay returned the document with an endorsement dated December 12th, stating “Returned not executed — Received address too late for service — Please reset and return.”
On December 9th counsel for Mrs. King wrote the trial judge a letter from Houston, of which the record contains no copy, but to which the judge replied by letter of December 15th, indicating the reluctance of the court reporter to deliver the statement of facts before disposition of the contest of the pauper’s oath, enquiring as to the “attitude” of counsel toward the contest and including a comment that whenever Mrs. King should be paid the sum due her from the Workmen’s Compensation suit “she should certainly be able to pay the costs incurred in connection with this appeal.” To this counsel replied under date of December 19th at considerable length, indicating great interest in but lack of knowledge of, whether Mrs. King had been paid the recovery in question, suggesting that no hearing need be had, that Mrs. King could not attend for lack of funds, and finally that the hearing be set for the latter part of the same week or at the court’s earliest convenience after Christmas Day.
The hearing was had on December 28th, which was slightly more than 30 days after the date of entry of the judgment in Cause No. 25798, from which Mrs. King was attempting to appeal, although there is little to indicate that this latter fact was realized at the time by either the parties or the judge. The only thing in the way of evidence there presented or suggested for Mrs. King was a formal affidavit of her present husband, which added no information to her original pauper’s oath. Mr. Cobb, however, on behalf of the respondent-defendant Transport Company, stated under oath that the judgment in the Workmen’s Compensation case against his other client, Pan American Insurance Company, was final and would shortly be paid off in full and then and there offered to pay $250 “on account.” Under cross examination he stated further that he had been authorized by Pan American to pay the judgment ever since November 23rd (prior to entry of judgment in Cause 25798) but had *118never paid it because of the pendency of the “supplemental motion for rehearing” later returned to its author by the Supreme Court on December 19th. We think it a necessary construction of Mr. Cobb’s testimony and other voluntary statements to the court at the hearing that his December 1st affidavit of contest, while it made no reference on its face to this interest of hers in the Workmen’s Compensation judgment, was yet based entirely upon it and, but for it, would not have been made at all.
Although the statutory 30 days for filing a bond or deposit had already expired, the judge expressly reserved his ruling for “ten days,” “to see if Pan American hasn’t paid off that judgment so that woman will have that money available for use for that appeal if she wants it.” He thereafter, on January 6th, 1956, formally sustained the contest, without making any specific findings, and on January 13th, Mrs. King (having probably collected meanwhile her Workmen’s Compensation judgment) filed the bond, which the clerk of the appellate court, and later the court itself, have considered to have been filed too late to invoke appellate jurisdiction.
So far as this latter conclusion goes, we agree with it. As clearly held in De Miller v. Yzaguirre, 143 S.W. 2d 425, in which we refused writ of error unconditionally, the two appeal routes of bond and pauper’s oath are jurisdictional and alternative, and, for all the apparent impression of counsel and the trial judge in Cause No. 25798 to the contrary, a contest over a pauper’s oath does not operate to extend the time for filing a bond beyond the 30 days specified in Rule 356, where the contest is sustained. The cited case so holds and there is admittedly nothing in the language of the Rules themselves to indicate otherwise. In the vast majority of appeals there is no confusion whatever created by the Rules as they stand in this particular, and to have them provide for an extension might well open the door to abuse of a privilege reserved only to the very poor as well as provoke additional procedural questions in courts already disproportionately concerned with procedural litigation.
But whether the contest of the pauper’s oath should have been sustained is something else, although normally the fact that the hearing on the contest happens to occur — as here— after the final day for filing an appeal bond has not the least bearing on the merits of the contest.
The question the relators raise here — and, we think, raised adequately, if imperfectly, at the hearing also — is one not in*119volved in the De Miller case, to wit, the effect on the relator’s right of appeal under the pauper’s oath route of legal lack of good faith in the contest itself. If that contention is correct, the facts that in an ordinary contest the burden of proof is on the alleged pauper and that no evidence was introduced by Mrs. King at the contest hearing would not be material.
Mr. Cobb’s afore-mentioned affidavit (December 1st) stated that both Mr. King and Mrs. King were able to pay or give security for the appeal costs, and, as above indicated, his own words at the subsequent hearing demonstrate that his affidavit meant to refer only to Mrs. King’s expectations of payment from his client, Pan American Insurance Company, in the then virtually ended Workmen’s Compensation suit. But, while thus swearing in clear effect that Mrs. King had the money, he was admittedly proceeding at that very moment on the theory that she did not have it and might not get it for some time from either Pan American or the other insurer involved in that suit. On that date he was himself holding back the money in the hope that his “supplemental” motion for rehearing in that suit would be granted and cause him not to have to pay it.
Now Mrs. King either had access to the funds in question on December 1st or she did not, and Mr. Cobb knew about this better than anyone else, being the one who was to pay them if they were to be paid. His affidavit was intended to give the impression that she then had the benefit of them. Actually she did not, because she had not been paid and, at least according to his own hopes, might not be paid by Pan American or anyone else for some time to come. That he or anyone else may have naturally regarded her expectations as an asset of sorts does not justify his affidavit under the circumstances, when he should have known that only a short delay might be fatal to her right to appeal by the bond route and that he himself would or could delay the payment, as indeed he actually did for over 27 days after making the affidavit of December 1st and even over 9 days after the return of his supplemental motion for rehearing. Conceding his right to withhold payment as long as he could, he yet had no right to withhold it with the idea of possibly never making it and at the same time swear that Mrs. King had the benefit of it for her appeal in Cause No. 25798.
Such being the case, we think it follows that Mrs. King is entitled to relief. The affidavit being in the legal sense not made in good faith, it was not a contest at all, despite being in due form and in nowise misleading on its face. This should have been *120little, if any, less obvious to the trial judge than it was, or should have been, to Mr. Cobb. The point was certainly brought out at the hearing sufficiently for the judge to have grasped it. That he failed to do so (but, on the contrary, thereafter sustained the contest apparently because Mrs. King had eventually received her money — when she could not use it) was an error too clear and unjustifiable to be disregarded even in a collateral proceeding like the present. In more conventional language, it was an abuse of discretion.
Even if Mr. Cobb’s affidavit had stated the full facts, it would still have been clear error to sustain the contest, because the affidavit would then have been insufficient on its face to justify such action. The mere possibility of having funds in time to make the bond is not the same as actually having them, especially when the person who in fact controls the time of payment obviously has no intention of making payment at that time and moreover is professionaly interested on behalf of another client in defeating the appeal. In this latter connection, the fact that the lawyers and judge concerned may have been under a misapprehension as to how long Mrs. King could delay filing an appeal bond does not keep the decision from being an abuse of discretion.
As to the appeal of the guardian ad litem, we conclude it to have been perfected by the mere notice of appeal given in the judgment sought to be appealed. By the terms of Art. 2276, Vernon’s Texas Civ. Stats., “executors, administrators and guardians appointed by the courts of this state shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity.” We see no good reason why “guardians appointed by the courts” should be taken as not including guardians ad litem, especially when we have already so held in a case where the guardian ad litem represented minor intervenors claiming life insurance proceeds in an interpleader suit of the insurer. Schonfield v. Turner (Texas) 6 S.W. 628. Rule 173, supra, expressly contemplates appointment of such guardian for minor plaintiffs, and the subject matter of that rule being well within the procedural field, the rule-making authority was thus acting well within its power in adopting the rule, as it did, in substitution of old Art. 2159, Vernon’s Texas Civ. Stats, although the latter mentioned appointments only on behalf of parties defendant.
There is no inconsistency between Rule 173 and Rule 44, which latter provides that incompetents who have no legal *121guardian “may” sue by “next friend,” who “shall have the same rights concerning such suits as guardians have but shall give security for costs, or affidavits in lieu thereof, when required.” Actually, one might say that Rule 173 has Rule 44 very well in mind, since it is expressly designed for the case — which we have here — in which the incompetent is already represented in the suit by “next friend” (or “a guardian”), but in which the latter “appears to the court to have an interest adverse to” that of the incompetent. In other words, Rule 173, in so far as parties plaintiff or intervenors are concerned, provides only for the narrow group of situations in which the suit is begun by the “next friend” process under Rule 44 (or by permanent guardian) but the court thereafter is advised or comes to believe that such existing representative is adversely interested. Rule 173 thus provides for a contingency not covered by Rule 44, to wit, the appearance, after the suit is filed, of a probable conflict of interest between representative and represented. If we should, for example, assume Rule 173 not to exist in next friend cases, there would certainly be no express provision in the Rules for the conflict of interest situation, and where such a situation should actually arise, the court would be faced with the question of reading into Rule 44 a provision for a substitute next friend.
Nor does the additional consequence of Rule 173, of a court appointed representative, with privilege to appeal without bond, suggest a conflict with Rule 44, which expressly denies such privilege to a “next friend.” It is altogether natural that in conflict situations the substitute representative should be court appointed, and in turn this important difference between the “next friend” of Rule 44 and the guardian ad litem of Rule 173 naturally and properly invokes Art. 2276, supra.
We acordingly adjudge that both relators, Mrs. King (in her own right) and Mr. Woody as guardian ad litem of the minors, are entitled to the mandamus as prayed. Under our established practice, however, the writ itself will be withheld pending compliance with our holding by the Clerk and Justices of the Court of Civil Appeals, which will undoubtedly follow. Costs are adjudged against the respondent, Keystone-Fleming Transport Company.
Opinion delivered July 11, 1956.
Rehearing overruled July 25, 1956.