Menz v. Beebe

95 Wis. 383 | Wis. | 1897

Oassoday, C. J.

The mere fact that the complaint states that at the times mentioned the plaintiff was “ of a weak and feeble mind, and not of sufficient mental capacity to attend to ordinary business transactions, or to protect and preserve his property rights,” did not prevent him from commencing and maintaining this action. “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in sec. 2607,” E. S. E. S. sec. 2605. The section thus referred to provides that “An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.” E. S. sec. 2607. “ When an infant is a party, he must appear by guardian.” R. S. sec. 2613. Sec. 2614, R. S.', prescribes how such guardian for an infant shall be appointed. Where an insane defendant-is without a guardian, “the court, or a judge thereof, shall appoint a guardian of him for the action.” R. S. sec. 2615. The same section provides that “ If, during the pendency of any action, either party shall become or prove to be insane, the action may be prosecuted or defended by his guardian, in like manner as if it had been commenced after the appointment of the guardian, or the court, or judge, may appoint a guardian for the action as the case may require.” “ Such guardian for the action .may be appointed upon the application of any party thereto, or of any relative or friend of such insane party,” etc. R. S. sec. 2616. It is stated in the brief of counsel for the plaintiff that “these are the only statutes of this state requiring parties to appear in the circuit court by guardian ad litem,” and counsel for the defendants fails to cite any other statute, and we find none. True, as conceded by counsel for the plaintiff, there are other statutes providing for the appointment by the county court, under certain circumstances, of guardians of insane persons, and of persons mentally incompetent to have the care and management of their own property, and drunkards or spendthrifts. S. & R. Ann. Stats, secs. 3976-3982. But none of these statutes preclude the plaintiff from commencing and maintaining this action upon the facts stated. For is there anything in Rule IX of the circuit court, cited by counsel, which prevents him from doing so. Since there is no statute requiring this action, upon the facts stated, to be commenced by guardian, there seems to be no reason why the plaintiff should not appear by his attorneys, and prosecute the action in the name of himself, as the real party in interest. R. S. sec. 2605. Of course, if the plaintiff becomes or proves to be insane, then, under a statute cited, “ the court or judge may appoint a guardian for the action, as the case may require.” R. S. sec. 2615. The trial court may be relied upon to protect the rights of all parties, and appoint a guardian whenever it is necessary. Besides, the authorities cited by counsel for the plaintiff are to the effect that at common law, and in the absence of a statute to the contrary, a weak and feeble-minded person of full age may bring an action in his own name, and appear by attorney, and not by guardian ad litem. Faulkner v. McClure, 18 Johns. 134; Petrie v. Shoemaker, 24 Wend. 85; Cameron's Com. v. Pottinger, 3 Bibb, 11; Reed v. Wilson, 13 Mo. 28; Green v. Kornegay, 4 Jones, Law (N. C.), 66; Chicago & St. P. R. Co. v. Munger, 78 Ill. 300. We are cited to no other authorities to the contrary. The objections that the plaintiff has not the legal capacity to sue, and that there is a defect of parties plaintiff, are not well taken.

It is equally clear that several causes of action are not improperly united. There is but a single cause of action stated, and that is to rescind the trade, and to restore to the plaintiff, as far as possible, the property wrongfully taken from him, and to give him damage so far as he has wrongfully been deprived of his rights. The complaint states a good cause of action.

By the Court.— Both orders of the circuit court are affirmed.