Bazor v. J. J. Newman Lumber Co., No. 23582

No. 23582 | Miss. | Oct 29, 1923

Cook, J.,

delivered the opinion of the court.

The. appellant filed a declaration in the circuit court of Lamar county, alleging personal injuries and seeking to recover damages therefor in the sum of two thousand five hundred dollars. The appellee, defendant in the court below, filed two special pleas, averring that at the time of the alleged injury the appellant was a minor; that, acting through his father, J. W. Bazor, and his mother, Margaret Bazor, as next friends, he filed a petition in the chancery court of Covington county in which he set forth the fact of the injury sustained by him; that the appellee denied liability for such injury, but had offered -to pay him an agreed sum to avoid litigation; that he had conferred with counsel and friends, and upon their advice represented that it would be to his best interest to compromise and settle any claim which he had against appellee on account of said injuries; that in order to make such settlement it was necessary for his disabilities of minority to be removed to the extent of enabling him to make the settlement and, for the consideration named, to execute a valid and binding release in favor of appellee from all liability to him on account of said accident and resulting injuries, and praying that his disability of minority be removed for the purpose and to the extent stated. These pleas further averred that on the 24th day of January, 1920, the prayer of this petition was granted and a decree was entered removing the disability of minority of the said minor to the extent and for the purpose prayed for in the petition; that on the 11th day of February, 1920, pursuant to the authority conferred upon appellant by the decree removing bis disability of minority the appellee paid to the appellant the sum of seven hundred and twenty-five dollars in full and complete satisfaction and release from any and all damages sustained by him by reason of the alleged injury; that the appellant accepted said sum in full and complete settlement and satisfaction of such damages sustained by him, and thereupon executed and delivered to appellee a full release in writing, a copy of which was filed as an exhibit to and as a part of the plea.

To these pleas the appellant filed replications, averring that the chancery court did not acquire jurisdiction in the proceedings to remove appellee’s disabilities of minority, and that ij;s decree was void because twó of his nearest of kin within the third degree did not join in said petition as individuals, and no process was issued for said nearest of kin. 'The appellant filed demurrers to these replications, and these demurrers were sustained and extended to- the declaration, and the cause dismissed, and from this judgment this appeal is prosecuted.

The only question presented for decision by this record is whether the chancery court had jurisdiction to remove the disability , of minority of appellee upon an ex parte petition presented by the minor through his father and mother as next friends. It is the contention of the appellant that the petition must be presented by the minor by his next friend, and that in addition two others of his nearest of kin must join in the petition, or, in other words, that the father or mother cannot act in the dual capacity of next friend and nearest of kin, and in support of this contention he relies upon the cases of Jackson v. Jackson, 105 Miss. 868" court="Miss." date_filed="1913-10-15" href="https://app.midpage.ai/document/jackson-v-jackson-7991626?utm_source=webapp" opinion_id="7991626">105 Miss. 868, 63 So. 275, Ann. Cas. 1915D, 489; Hardy v. Pepper, 128 Miss. 27" court="Miss." date_filed="1921-10-15" href="https://app.midpage.ai/document/hardy-v-pepper-7994178?utm_source=webapp" opinion_id="7994178">128 Miss. 27, 90 So. 181; and Milham v. Higdon, 131 Miss. 260" court="Miss." date_filed="1922-09-15" href="https://app.midpage.ai/document/milham-v-higdon-7994508?utm_source=webapp" opinion_id="7994508">131 Miss. 260, 95 So. 433" court="Miss." date_filed="1922-09-15" href="https://app.midpage.ai/document/smith-v-cleveland-steam-laundry-inc-7994507?utm_source=webapp" opinion_id="7994507">95 So. 433. In these cases the court had under consideration section 545, Code of 1906 (section 302, Hemingway’s Code) and it was held, as expressly provided by this section, that in an ex parte proceeding all the kindred within the third degree must be made parties to or join in the application. However, the requirement of this section that all the kindred within the third degree must be joined in the application was materially changed by qn amendment thereto found in chapter 123, Laws of 1918; the section as amended providing that— “If any two of such kindred known to [the minor] or his copetitioners shall unite with him in his application, it shall not be necessary to make any person defendant thereto.’''

While it is true that in the present case the father and mother of the minor are joined in the petition as nest friends, they are likewise the two nearest of kin, who by nature should be most interested in the welfare of- the minor, and they are as effectively parties to the petition as if named therein as nearest of kin. We know of no reason why they cannot be joined in t;he dual capacity, and, since the statute as amended only requires that two of the nearest of kin shall unite with the minor in his application, we think the petition in this case was sufficient to confer jurisdiction on the chancery court, and that the decree entered thereon is valid.

The judgment of the court below will therefore be affirmed.

Affirmed.