39 Ind. 24 | Ind. | 1872
This suit was brought before a justice of the peace by the appellee against the appellant, on the following cause of action: “John Rowe in account with George Arnold, debtor for labor done by plaintiff for defendant from March nth, 1870, until May 20th, 1870, at sixteen dollars per month—thirty-seven dollars and fifty cents. George Arnold by Ezra Huffman, his next friend.”
The transcript of the justice says that the defendant moved to dismiss the cause, for the' reason that the suit is in the name of George Arnold by Ezra Huffman, his next friend, and the summons has not the name of Ezra Huffman in it. The motion was overruled. The summons is not in the transcript, and we cannot say that it did not contain the name of the next friend, even if it were necessary that it should, which we do not decide. On appeal to the common pleas, the clerk’s entry says, “ The defendant moves the court to dismiss the cause herein for want of next friend.” The motion was overruled, and exception taken.
The correctness of this ruling is the only question in the case. The record nowhere shows that George Arnold was a minor, and the name of the next friend might have been treated as surplusage, and the cause prosecuted in the name of Arnold; for the law presumes that all parties to suits are adults, unless the contrary is made to appear. Hanly v. Levin, 5 Ohio, 228. But the complaint is signed by Huffman as the next friend, and is a sufficient consent in writing under sec. 11, 2 G. & H. 42. We may add that the transcript shows that the next friend also appeared as attorney for the plaintiff and tried the cause before the justice.
The court committed no error in overruling the motion to dismiss.
The judgment is affirmed, with ten per cent, damages, at the costs of the appellant.
