This suit for damages for injuries suffered in an automobile accident was filed on February 16, 1942, styled, “Alice Patricia Cozine, an infant, by and through Harold C. Cozine, her father and next friend v. Albert Bonnick.” Bond for costs recites that both Alice and her father were nonresidents of Kentucky. Summons issued currently was returned, “Not found.” A like return on an alias summons added that the defendant was then in the United States Navy. A year later Harold C. Cozine withdrew as next friend and the plaintiff’s aunt, Ursula Walker, was substituted. It was stated that she was under no disability or restraint. On October 4,1947, on Alice’s motion reciting that she had become twenty-one years of age on February 11, 1946, and married, it was ordered that the name of the next friend be stricken and the case proceed in the name ■ of “Alice Patricia Morrow, the plaintiff and real party in interest.” Summons was served on the defendant two days thereafter.
The defendant demurred specially to the petition as amended (the amendments relating only to the substitutions) upon the ground that neither the father nor the aunt had legal capacity to sue because they had failed to show they were residents of Kentucky and the court was without jurisdiction. Two years thereafter the court sustained the special demurrer and the peti
Two questions are presented. One is whether a nonresident may represent an infant as next friend. The other is if it appears that he may not, is the suit a nullity, or the court without jurisdiction, so that when the infant reaches his majority and is permitted to prosecute the case as a person sui juris, is it in effect a new action?
We have held that a next friend must be a resident of this state. Stevenson v. Stevenson, 13 Ky.Op. 1012, 7 Ky.Law Rep. 680; Dr. Pepper Bottling Co. v. Hazelip,
The real point is that if the order permitting the former minor to prosecute the case does not relate back, but is a new suit, then the action is barred by the statute of limitations. The question has not heretofore been expressly determined by this court.
The appellee supports the trial court’s ruling that the effect is not retroactive principally upon Vassill’s Adm’r v. Scarsella,
A personal representative is just what the title indicates — he stands in the shoes of his decedent. In respect to personalty, an administrator alone may speak for the estate. He alone can sue and be sued, and in his fiduciary capacity is the real party in interest. Sec. 21, Civil Code.
It is otherwise in the case of an infant. The Code of Practice speaks of “The action of an infant,” and says it “may be brought by his next friend.” Sec. 35(3), (4). It refers to a person suing “as next friend” and to a “next friend who brings or prosecutes an action for a person * * * under disability”. Sec. 37. Therefore, it is recognized that actions must be prosecuted in the name of the infant and for his benefit. In all cases the infant is himself the plaintiff, the process running in ' his name by his next friend. The authority of the next friend is very limited. When the infant becomes of age, his representative passes out of the case and it proceeds in the name of the infant. Ohio Valley Tie Co. v. Hayes,
Under this concept, venue and jurisdiction are determined by the right of the infant to maintain the suit. So it was a mere irregularity and not a fatal defect that the persons who had represented the infant in the present case as next friends were not authorized in law to act in that capacity because of nonresidency. Elkhorn Coal Corp. v. Guttadora, supra,
We conclude, therefore, that the special demurrer should have been overruled and the right of the plaintiff, Alice Patricia Cozinc Morrow, to continue the prosecution of the case declared.
Judgment reversed.