115 Ind. 55 | Ind. | 1888
This is the second appeal to this court in this case. On the former appeal herein, the opinion and judgment of the court are reported under the title of State, ex rel., v. Britton, 102 Ind. 214. We then held that, in the first paragraph of her complaint herein, plaintiff’s relatrix, Mary L. Rowe, stated a cause of action amply sufficient to withstand defendant’s demurrer thereto for the alleged insufficiency of the facts therein to constitute a cause of action. After the cause was remanded to the court below, defendant’s demurrer to the first paragraph of complaint was overruled, in obedience to the mandate of this court. Defendant then answered in three paragraphs, of which the first stated a special defence, the second was a general denial of the first paragraph of complaint, and in the third paragraph of his answer he denied under oath his execution of the bond in suit. Relatrix replied by a general denial of the first paragraph of answer. The issues joined were tried by a jury, and a verdict was returned for plaintiff’s relatrix, assessing her damages in the sum of $200; and, over defendant’s motion for a new trial, the court rendered judgment on the verdict.
In this court, the only error assigned by defendant, Brit-ton, is predicated upon the overruling of his motion for a new trial.
Plaintiff’s relatrix sued herein upon a guardian’s bond, alleged to have been executed by one Edward G. Rowe, as guardian of the persons and property of relatrix and others, minor heirs of Mary Rowe, deceased, and defendant Britton, . as his surety therein. This bond is set out at length in our
We proceed now to the consideration of the alleged errors of law occurring at the trial, of which defendant’s learned counsel complain in their exhaustive brief of this cause.
It is shown by a bill of exceptions properly in the record that, while the relatrix was introducing her evidence in chief on the trial, she “admitted in open court, and before the jury empanelled to try said cause, that she was not twenty-one years of age.” Thereupon, the defendant moved the court to dismiss this cause, on the ground that relatrix was a minor, and a minor could not be a relatrix, which motion was overruled by the court, and defendant excepted. Defendant then asked leave of the court to file an additional paragraph .of answer, showing the minority of relatrix, and that the fact was unknown to him and his counsel until after the trial had begun; but such leave was refused by the court, and defendant excepted. Defendant then moved the court to require that relatrix should prosecute this suit by a responsible person appearing as her next friend, which motion was overruled by the court, and defendant excepted. These three rulings of the trial court relate to the same subject and present the same questions, and may be properly considered together.
It is manifest that each of these motions of defendant is founded upon the provisions of section 256, R. S. 1881, and the construction placed thereon by his counsel. In that section it is provided as follows: “ Before any process shall be issued in the name of an infant who is a sole plaintiff, a competent and responsible person shall consent in writing to appear as the next friend of such infant; and such next friend shall be responsible for the costs of such action; and thereupon process shall issue as in other cases,” etc.
Thus, in section 255, E. S. 1881, it is provided as follows:
“ When an infant shall have a right of action, such infant shall be entitled to bring suit thereon, and the same shall not be delayed or deferred on account of such infant not being of full age.”
From the facts stated in the complaint of the relatrix herein, sustained as they were by the evidence in the record, she had a clear right of action against the defendant, which, under the statute, was not to be “ delayed or deferred ” on account of her not being of full age. It may be said, however, that there is nothing in the section last quoted which would excuse or prevent the relatrix herein from complying with the requirements of section 256, supra, by procuring the written consent of a competent and responsible person to appear in this potion as her next friend. This is true, no doubt, as a general rule, but not, we think, as applied to this case as shown by the record thereof. It appears from the record that long before the trial of this cause, and before the
In Hood v. Pearson, 67 Ind. 368, it was held by this court in a carefully considered opinion, that, construing together the provisions of sections 256 and 260, supra, an infant plaintiff has the right, upon showing to the satisfaction of the proper court that he is a “poor person, not having sufficient means to prosecute his action,” to be admitted by the court to prosecute the action “as a poor person,” without the procurement of a next friend to appear therein. The case cited was approved and followed, upon the points under consideration, in Wright v. McLarinan, 92 Ind. 103, and we still adhere to it in the case at bar.
2. Defendant’s counsel next insist very earnestly that the
3. Finally, it is claimed on behalf of defendant that the court below erred in excluding evidence tending to prove that, at the time he signed the bond in suit, he ordered the clerk of such court not to accept the bond, without another surety thereon, and that the clerk refused to accept such • bond. Manifestly, this evidence was offered by defendant in support of his plea of non est factum, and for no other purpose. But it is shown by the record that defendant offered such evidence on his cross-examination of a witness introduced' by relatrix in support of her cause of action. The evidence offered was not competent or legitimate, strictly speaking, on cross-examination; and we may well suppose that it was on this ground such evidence was excluded by the learned judge of the trial court. Cincinnati, etc., R. W. Co. v. Lutes, 112 Ind. 276, 284.
Defendant’s motion for a new trial was correctly overruled.
The judgment is affirmed, with costs.