# Brown v. Dellinger

> Court of Appeals of Texas · March 6, 1962 · 355 S.W.2d 742

URL: https://www.frixlaw.com/law-library/cases/9769222

## Case

- **Full name:** George Thompson BROWN and Dan Christian Woldert, Jr., Appellants, v. John L. DELLINGER, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** March 6, 1962
- **Citations:** 355 S.W.2d 742; 1962 Tex. App. LEXIS 2309
- **Precedential status:** Published
- **Opinion:** Dissent by Davis
- **Judges:** Fanning, Davis, Chadick
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769222

## Opinion text

DAVIS, Justice.
I dissent. This is a suit against two minors; seven and eight years of age.The transcript does not contain any evidence of any service of citation upon either of them. The minors must be served with citations. A notice for the request for admissions was served on the Guardian Ad Litems. The service of such process on the minors is a necessity. 30 Tex.Jur. (2) 732, Sec. 69. 43 C.J.S. Infants § 115, p. 313.
An attorney can represent the minors, but he can not waive nor admit away any substantial rights of the minors. 43 C.J.S. Infants § 114b, p. 312. All facts must be proved. There can be no admissions of fact, as a matter of law, against a minor under nine years of age. 30 Tex.Jur. (2) 664, Sec. 3; Hatton v. Bodan Lumber Co., 57 Tex.Civ.App. 478 , 123 S.W. 163 , err. ref.; Austin et al. v. Collins et ux., Tex. Civ.App., 200 S.W.2d 666 , er. ref., N.R.E.; 30 Tex.Jur. (2) 703-4, Secs. 49 and 50.
There is a question of fact as to the consent of the appellee in permitting the *748 minors to play upon his premises. The ap-pellee testified, by deposition, that the two minors had played in his garage before, and were welcome to do so. The attorneys for the two minors stipulated that they had not played in the garage before. The attorneys had no authority to make such stipulation of fact. The fact had to be proved by evidence before the court. 43 C.J.S. Infants § 114b, p. 312.
I would reverse the summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769222. Public record. Not legal advice.