150 Ind. 67 | Ind. | 1898
The appellant filed her complaint against the appellee in two paragraphs, to each of which- the court sustained a demurrer. In the first paragraph of the complaint it is alleged: That the appellant is the duly appointed guardian of one Goldie Kinsley; that since her said appointment, at the June term, 1896, of the Shelby Circuit Court, she has been, as such guardian, in possession of certain described real estate in Shelby county; that the appellee, “without right, unlawfully, and without legal authority,” and, though forbidden by this guardian so to do, has entered upon said real estate, and is engaged in raising and removing a dwelling house from the same; that said house is permanently attached to and a part of said real estate, and cannot be removed therefrom without great damage thereto and to her ward’s use and enjoyment and the rents and profits thereof; and that the damages to said premises will be irreparable. The prayer is for a temporary restraining order, and on the final hearing for a permanent injunction and damages. The second paragraph is similar, except that it alleges: That the appellee has entered upon the premises and raised the building from its foundations and placed the same upon rollers for the purpose of removing it from the premises; that great damage has already been caused by the pulling away of the foundations, and the wrenching and twisting of the frame work, windows, and doors, and the cracking of the plastering. The prayer in this paragraph is for damages.
The reason for the action of the court in sustaining
There is a second ground of demurrer stated, that there is a misjoinder of causes of action. This error, however, even if it existed, would not, by force of the statute, authorize a reversal of the judgment. Section 344, Burns’ R. S. 1894 (341, R. S. 1881); Cargar v. Fee, 140 Ind. 572.
It is said in appellant’s brief that the learned judge who presided in the court below, in passing upon the demurrer, said that, at first, he thought that .the guardian could maintain a suit in her own name to prevent waste to her ward’s real estate, but was of opinion that in the case of Wilson v. Galey, supra, it was decided otherwise; and that, while he regarded that case as bad law, he felt nevertheless that he was bound by it, and would have to sustain the demurrer, on the ground that the guardian could not bring such a suit in her own name, but that it must be brought in the name of the ward by a next friend. Whether Wilson v. Galey, supra, is good law we need perhaps not say, but, even if it is, we do not think it is authority in the case at bar. It was there alleged in the guardian’s complaint for waste, “that his wards were the owners of certain real estate, particularly described, wherein the appellant Sophia B. Wilson had a life estate for and during her own life, and then had possession thereof as such life tenant.” In the case at bar it is shown in the complaint that, the guardian
It is true that, in section 256, Burns’ R. S. 1894 (255, R. S. 1881), it is provided that “when an infant shall have a right of action, such infant shall be entitled to bring suit thereon;” and that, in section 257, Burns’ R. S. 1894 (256, R. S. 1881), it is further provided that, “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.” These are no doubt wise statutes for the protection of the rights of infants, but we do not think they were intended to prohibit other forms of action in favor of infants and their estates. It has been expressly held that, under section 261, Burns’ R. S. 1894 (260, R. S. 1881), an infant may sue as a poor person without a next friend. Britton v. State, ex rel., 115 Ind. 55. And, under section 1208, Burns’ R. S. 1894 (1194, R. S. 1881), providing that in all proceedings for partition of land “guardians may act for their wards as their wards might have acted, being of age,” it has been held that guardians of minors may bring or defend actions in their own names for partition of the lands of their wards. Bowen v. Swander, 121 Ind. 164. Also, under clause 5 of section 2685, Burns’ R. S. 1894 (2521, R. S. 1881), providing, among other things, that it shall be the duty of a guardian of a minor to “collect all
These instances make it plain that it was not intended that the right to sue by next friend should be the only right of action in favor of an infant. It is indeed well that an infant should have the right to sue by next friend. There may be no guardian, or the guardian may be unfaithful to his trust. To put a minor, so, far as possible, on an equality with an adult in this respect, it was necessary to provide that, as he is incompetent in law to speak for himself, some friend might come into court with him, and there speak and act for him., As the minor could not be bound for costs, it was further necessary to provide that the friend appearing for him should be liable for the costs of the suit brought. None of these reasons appear in case the guardian comes into court for his ward. We are therefore of opinion that the statutes providing that an infant may bring suit by next friend were intended as an additional protection to infants and their estates, and were not meant to deprive them of other means of obtaining such protection.
Moreover, it is clear, as we think, that the statutes in relation to guardians fully authorize the bringing of such an action as that here brought. By section 2673, Burns’ R. S. 1894 (2512, R. S. 1881), it is provided that the appointment of a guardian for a minor in any county shall “extend to all the property of the
In the control given to' guardians over the property of their wards, the law does not seem to distinguish between personal and real property, except that the guardian may not sell or incumber real estate without an order of court. But, for the reason simply that the statute gives to the guardian the custody and management of the .personal property of his ward, it has been held that he may maintain replevin for it, notwithstanding the infant might also, by next friend, in a proper case, bring suit to recover such property. Boruff v. Stipp, 126 Ind. 32. In the case cited, the court held that the right of action for possession is not necessarily in the infant, when he has a legally appointed guardian claiming the possession and custody of the property. The guardian, said the court, “having the right to the control and management of the property he must, as a necessary incident, have the right to recover possession of such property from one unlawfully retaining the possession of the same. It certainly does not lie in the mouth of one who unlawfully retains possession of the property of the ward, and deprives the guardian from managing and
The right and duty of the guardian to protect his ward’s real property can certainly be no less than his right and duty to protect such ward’s personal property. The judgment is reversed, with instructions to overrule the demurrer to each paragraph of the complain!.