45 Ala. 215 | Ala. | 1871
We think the judgment in this case must be affirmed. It was rendered in a proceeding commenced in the probate court of Henry county, by a petition filed in that court in the name of James R. Barwick, an infant under the age of twenty-one years, by his next friend, George W. Raekley. The petition states that said infant is an heir at law of James G. Barwick, deceased, and a distributee of his estate.
The object of the proceeding, as stated in the petition, was to set aside a final settlement of said estate, made in said court by Reddin Barwick, administrator of said deceased.
The grounds stated in said petition for setting aside said settlement are, that the person appointed as guardian ad litem, to represent said infant in said settlement, did not accept of his appointment, nor did he, in fact, represent him in said settlement.
On the day appointed for the hearing of said petition, a motion was made to dismiss the same, founded on a petition of said infant, on the ground that said next friend
This petition was not sworn to, and the only evidence offered to support said motion was an affidavit of said infant, that he had never, in any manner or form, authorized said Rackley to act as his next friend, or to institute any proceedings in said court, or any other court, and that he did not, in any way, recognize the acts of said Rackley in the premises.
The court overruled said motion, and refused to dismiss said petition, and the appellant excepted. This ruling of the court is assigned for error.
This assignment of error seems to be based upon the idea, that to authorize a suit to be brought in the name of an infant, by his next friend, it is necessary for the next friend to obtain the consent of the infant, especially if he has arrived to the age of discretion; and if such consent is not obtained, the suit must be dismissed, on the motion of the defendant. But we hold the true doctrine on this subject to be, that it is not necessary to obtain either the consent of the infant, or the leave of the court, in such cases, before the commencement of a suit. In the case of Bethea v. McCall, 3 Ala. 449, it is decided that a suit may be brought by a prochien ami without first obtaining the leave of the court for that purpose.
So, too, in Tyler on Infantry and Coverture, p. 197, it is said that it is not necessary for a person prosecuting a suit in the name of infants, to show that the same was commenced with their knowledge or consent; that any person may bring a suit in their name, as their next friend, because he does so at his peril.
This is true, whether an infant be of tender age, or is
The only check upon this general license, seems to be, that on a proper application, which may be made by the infant, by a next friend, the general guardian, or any near relative of the infant, the court will institute an inquiry, whether the suit is for the benefit of the infant, or whether it is for his interest that it should be prosecuted by the person named as next friend ; and if, on such inquiry, it shall appear that the suit is not for the benefit of the infant, or that it is not for his interest that the suit should be prosecuted by the person named as next friend, in either case, the court would order the proceedings to be stayed ; and in the latter case, will remove the next friend and appoint another in his stead. — Tyler on Infancy and Ooverture, 197, 198 ; Fulton v. Rosevelt, 1 Paige’s Rep. 170, 179. One reason for this practice is, that a prochien ami is treated as an officer of the court, and subject to its direction and control, and liable to be removed by its order, and another reason is, that an infant is legally incompetent, by reason of his infancy, either to give, or to withhold his consent. We, therefore, decide that the probate court committed no error in overruling the motion to dismiss the petition in this case.
After this motion was thus disposed of, the court proceeded to the hearing of the application, to set aside the decree of final settlement, on the merits, and rendered a decree, setting the same aside, and taxed the appellant with the costs. To this ruling and decree of the court, the appellant excepted, and the same is also assigned for error.
The bill of exceptions states that on this hearing, the said next friend, said Rackley, introduced as evidence: 1st. The inventory and appraisement of said estate ; 2d. The report of the sale, made by said Reddin Barwick, the administrator; and, 3d. The record of the final settlement, and the proceedings had thereon, on the 29th day of October, 18(56, and then closed his case.
The said Reddin Barwick, then offered in evidence all the records of said court pertaining to said settlement
As the evidence is not set out in the bill of exceptions, we can not know whether the probate court decided right or wrong. The rule in such cases is, that the appellate court will presume the court below decided right, and affirm its judgment.
This assignment of error, however, presents one question, that we can legitimately consider, and that is, had the said probate court, at a subsequent term, the power to set aside this decree of final settlement for the causes set out in the petition ? to-wit: that the guardian ad litem, appointed to represent the infant, did not accept of his appointment, and did not in fact represent him in said settlement ? This question we have already decided in the affirmative, in the case of Laird, Adm’r, v. Reese, 43 Ala. Rep. 149.
It follows, that there is no error in the record, and therefore, the judgment of the probate court is affirmed, at the cost of the appellant.
