20 Kan. 43 | Kan. | 1878
The opinion of the court was delivered by
Defendant in error sued plaintiff in error before a justice of the peace, and recovered judgment. This judgment was affirmed on error by the district court, and is now brought here for reexamination. Defendant moved the justice to dismiss the action on the ground that the plaintiff was a minor. This motion was overruled, and this is the alleged error. A bill of exceptions duly taken shows, that it appeared from the records and admissions of plaintiff, in open court, that plaintiff was a minor. If this were all, the question would be one of easy solution, for a minor can sue only by his next friend, or guardian. (Civil code, §31, Gen. Stat., p. 636.) But in the docket of the justice appears this entry:
“November 15th, 1876, one o’clock p.m. — Case called. Present, the plaintiff and defendant. By agreement of the parties to this suit, this case is adjourned for trial to the 22d of November 1876, at 1 o’clock p.m.; and the defendant agrees to waive all right he might have from the fact of the plaintiff being a minor, and asks that the case be tried the same as if the plaintiff was of full and lawful age.
“R. H. Bishop, J. P.”
And it also appears, that before the motion to dismiss was filed the plaintiff had been required to give and had given approved security for costs. Now it may be said that the fact that plaintiff was a minor, was a defect which defendant could alone raise, and that he had already waived it; that the object in requiring the action of a minor to be brought by his next friend, or guardian, is, that there should be some responsible party against whom, if the plaintiff loses, a judgment may be rendered for costs, and that here approved security had already been given. On the other hand it is said, that the waiver above quoted is not a matter which by statute goes upon the record, was not brought upon it by bill of exceptions, and must therefore, under the authority of
Here we find a motion to dismiss, regularly made and decided, a bill of exceptions showing proof of the fact stated in the motion; and all this is to be overthrown by a statement, found on the justice’s docket, disconnected from any motion, or order, that the defendant had theretofore waived the defect. Suppose an action of attachment, charging non-residence of the defendant as ground therefor, a motion made to dissolve, and proof that defendant was in fact a resident, the motion overruled, and a bill of exceptions of the testimony and ruling taken: would it not seem strange, to a party prosecuting error, to find that the justice had noted on his
For this error the judgment must be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.