On Motion for Rehearing.
We have concluded upon further consultation that the appellant is not entitled to reversal of the judgment by virtue of the proceedings substituting Dr. Coffey as next friend. We do not regard the appointment of a next friend, under article 1994, R. S., as an administrative function, as appellee contends is held in Mabe v. Gille Mfg. Co., 219 Mo. App. 234, 271 S. W. 1023, but, on the contrary, regard same as essentially judicial. The fact that some one must be appointed next friend does not eliminate recognition of the duty that is vested in the court to use a wise discretion in making the appointment. Peters v. Allen (Tex. Civ. App.) 296 S. W. 929. So here we find Mrs. Cheney now the adopting mother of these infants. Plainly she is a natural “next friend,” and likewise it is plain that her purpose in not suing on behalf of her children is in order that she may testify without the restrictions of article. 3716, R. S. Whatever may be our admiration of such strategy, it was a plain device to violate the policy of the law and proper opposition thereto would receive our support.
However, our attention is directed to the fact that no application for continuance was filed or presented other than the oral request made by counsel, upon the grounds of surprise and that the defendants had relied upon the fact that they would not have to meet testimony from Judge Young, since he was prohibited as next friend from testifying to transactions with or declarations by the decedent, unless called by the defendants to do so. Such oral motion is not sufficient. Finlayson v. Roberts, 82 S.W. (2d) 1020 (by this court); City of Wichita Falls v. Lipscomb (Tex. Civ. App.) 50 S.W. (2d) 867.
Moreover, we are strengthened in our position that the substitution is probably not injurious to appellant’s rights by the fact that the motion for new trial, made after time for. investigation had elapsed, contains no allegation of fact tending to show any such injury or that a postponement of the trial would have been of any benefit to appellants.
So holding, we must rule.more particularly on the assignments relating to the submission of the evidence.
The court admitted in evidence the documents signed by Mantón Cheney and wife, which, if properly filed during his. lifetime, would have made the infants his children by adoption. We think they were admissible as a declaration by Cheney bearing on his contract to will. They were evidence tending to show his acceptance of terms of Judge Young’s proposition, in spite of the uncertain condition of the legal status of the children in regard to the dependency case and the whereabouts of the father.
The evidence of the destitute condition of Violet Shaw at and just preceding the making of Cheney’s contract with Judge Young we think admissible and an important factor in showing the duty of Judge Young to provide for those children a home. Manifestly, the duty of those officials in charge of juvenile home finding is not called into actual execution until the parents have failed or refused to perform their naturally and legally imposed parental" obligation of furnishing the necessities of life, and some grounds must exist for a belief that such dereliction will continue in the future.
While Judge Young should not have been permitted to impeach in the collateral proceedings a judgment of his court by oral testimony, we regard his statement that he held his recorded judgment “in suspense” as not being of sufficient importance in its effect on the issues of this case to justify a reversal.
The motion for rehearing is granted, our former judgment set aside, and the judgment of the trial court is affirmed.