delivered the opinion of the court.
Grace Rausch, a minor, by her next friend sued James *390 Cоzian and Mary Cozian to recover damаges received by being struck by defendants ’ autоmobile in December, 1924. She alleges that thеse injuries resulted in incurable valvular heart trouble and chronic appendicitis. On Januаry 10, 1928, the case came on for trial befоre a jury. The plaintiff failed to appear and her counsel represented that she was too ill to attend court at that time: Testimony of various witnesses was taken as tо her condition, whereby it developed that the plaintiff had chronic appendicitis and that an .operation had been аdvised and that it would be inadvisable for her to аttend court. The court stated that it was unneсessary for the plaintiff to be in attendance during the entire trial and ordered the case to proceed, whereupon рlaintiff’s counsel.asked for a continuanсe until the next morning, which was denied. Plaintiff’s attorney refused to proceed .with the trial of thе case. Judgment was thereupon enterеd for the defendants, to which the plaintiff assigns еrror in refusing to grant a continuance.
A litigant hаs the right to be present to assist his counsel in thе trial, and his necessary absence is a gоod reason for a continuance.
Elliott v. Field,
Thе plaintiff is a minor and a ward of the court, and under such circumstances, the court is in duty bound to protect her rights, which cannot be waived either by her guardian ad litem or her attorney.
People ex rel. Porteus v. Barton,
These cases support the general rule in all jurisdictions. Applying the doctrine laid down in the foregoing decisions, it is clearly apparent that the trial court’s action in entering judgment for the defendants under the circumstances was too drastic.
A reasonable continuance should have been granted, *391 and the plaintiff оrdered or permitted to appear in court either to attend the trial of her сase or to make a further showing as to her inability so to do.
It is not necessary for us to dеtermine, and we do not hold, that a court hаs not the power to dismiss a case brought by а minor.
' The court erred in rendering* judgment for the defendants. The judgment is accordingly reversed and the district court directed to vacatе the judgment entered for the defendants and to proceed with the trial of the case in accordance with the views herein stated.
Mr. Chibe Justice Whitrord, Mr. Justice Burke and Mr. Justice Alter concur.