136 Ark. 570 | Ark. | 1918
(after1 stating the facts). It will be noted from the findings of fact made by the circuit court that its judgment proceeded upon the erroneous idea that the minor could not bring suit by his next friend while he had a legally appointed guardian. In the case of Miles v. Boyden, 3 Pick. (Mass.) 213, the Supreme Court of the State of Massachusetts stated the English law and the changes by statute in this respect as follows:
“At the -common law, infants were required to sue and to defend by guardian. Go. Lit. b. note 220. The law has not been altered as to the manner in which they are to defend. But by the statute of Westm. 1, c. 48, infants were authorized to sue by prochein ami in an assise, and by Westm. 2 c. 15, in all other actions. * * # It was a cumulative remedy, leaving it optional for them to sue either by guardian or by next friend. Young v. Young, Cro. Car. 86; Goodwin v. Moore, ibid 161.”
This brings us to a consideration of our own statute on the subject. Section 6021 of Kirby’s Digest reads as follows:
“The action of an infant must be brought by his - guardian or his next friend. Any person may bring the action of an infant as his next friend; but the court has the power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian for the infant, or another person, as the next friend.”
In the construction of this statute in St. Louis, Iron Mountain & Southern Ry. Co. v. Haist, 71 Ark. 258, the court held that where a suit was brought for a minor by a foreign guardian who was not qualified to sue in this State, that the court was right in appointing someone as next friend to look after the minor’s interest in the suit, instead of dismissing it. To the same effect see Parker v. Wilson, 98 Ark. 553. Again in Watts v. Hicks, 119 Ark. 621, the court held that a minor by his next friend might file a remonstrance and appeal from an order of the probate court directing a sale of the land of the minor upon the application of the guardian who had left the State. But, so far as we are advised, the extent of the authority given by this statute has never been judicially determined. It is evident from the language used in the section above quoted that an infant is not always bound to bring a suit by guardian although one may be in existence. The infant may sue by his next friend, whether he has a guardian or not. Ordinarily the guardian is the proper person to represent his ward in all legal proceedings, and if objection had been taken at the proper time that there was a guardian by whom the suit should have been filed, it may have been that the court, in the exercise of a sound discretion, might have determined that the suit should have been changed and brought in the name of the minor by his guardian instead of as it was commenced. It is the business of the court to see that no one stands between the infant and the protection of his rights, and for this purpose, although a minor may, under our statutes, institute a suit either by his next friend or by his guardian, the court may, in the exercise of a sound discretion, determine whether or not it shall proceed as commenced. As sustaining this construction of our statute, see 21 Cyc. 191; Hooks v. Smith, 18 Ala. 338; Williams v. Cleaveland, 56 Atl. (Conn.) 850; Patterson v. Pullman, 104 Ill. 80; Holmes v. Field, 12 Ill. 424; Deford v. State, 30 Md. 179; Baltimore v. Norman, 4 Md. 352; Burke v. Burke, 49 N. E. (Mass.) 753; Price v. Phoenix Mutual Life Insurance Co. (Minn.), 10 Am. Repts. 166; Stewart v. Sims, 79 S. W. (Tenn.) 385; Robson v. Osborn, 13 Tex. 298; Thomas v. Dike, 34 Am. Dec. (Vt.) 690.
The recitals of the record show that, in the suit of the minor by his next friend against the Cooperage Company for damages, the circuit court made a judicial investigation of the merits of the controversy and of the character and extent, of the minor’s injuries before it allowed the judgment to be rendered. This is in accordance with the rule laid down in Rankin v. Schofield, 71 Ark. 168, and other' cases on the subject decided by this court. The record, also, shows that the court made a specific finding of fact that no fraud was practiced upon the minor in the matter, but the judgment of the trial court in setting aside the judgment in favor of the minor in the suit for damages is based wholly on the theory that the minor could not prosecute that suit by his next friend while he had a guardian in existence.
i It follows from the views we have expressed above that the court was wrong in so holding, and for that error ■the judgment must be reversed and the cause will be remanded for a new trial.