Wager v. WagonerWager v. Wagoner
This аction was brought in the name of Philip S. Wagoner by William J. Wagoner as his next friend, against Homer D. Wager and two others. The petition alleged that Philip S. Wagoner was, on August 25, 1893, insane and wholly incapable of contracting, thаt he.was the owner of certain described land in Boone county, and that the defendants conspired tоgether to defraud him thereof,
The first question presented is whether the action, may be maintained by a next friend. It is both pleaded and proved that therе had been no adjudication of insanity- and no guardian appointed. Under such circumstances we havе no doubt that the action was properly brought by a volunteer as the next friend of the insane person. Onе is not an outlaw, although insane, and the courts will interfere to protect his rights of person and of property at the instance of one who volunteers on his behalf. This does not open up the Avay to vexatious litigation by irresponsible persons, because the court would in such case have the power, exрressly reserved in the case of infants, to discontinue the suit if it turn out to be not in the interest of the plaintiff to havе it prosecuted, to substitute another person by appointment for the volunteer if he should be deemed unsuitable, or to substitute the duly appointed guardian if one should be appointed -pendente lite. .To hold that a suit may not be so maintained would frequently deprive lunatics of all protection, because it may often happen that the time occupied in procuring the appointment and qualification of a guardian Avould rеnder all relief impracticable. The cases holding that a lunatic may not sue by next friend are for the mоst part those where a guardian or committee has been appointed, or where, as in Ohio and in Illinоis, a statute makes adequate provision for suing in another manner. (Row v. Row, 41 N. E. Rep. [O.] 239; Covington v. Neftzger, 30 N. E. Rep. [Ill.] 764.) In the latter state, perhaps before the statute Avas passed, but certainly on a consideration of the law independent of statute, it had before been held that a next friend might sue. (Chicago & P. R. Co. v. Munger,
It is next argued that the court erred in finding under the evidence that Philip Wagoner was insane at thе time of his making the deed to Wager. We have examined the voluminous evidence in the case and are satisfied that there is sufficient competent testimony to preclude any interference with the finding of the triаl court. In this connection attention is called to the fact that the court received in evidence the record of certain proceedings before the insanity board of Douglas county, whereby an inquiry had been made under chapter 40, Compiled Statutes. It was held in Dewey v. Algire,
It is asserted next that the charge of conspiracy made in the petition is not sustained by the evidence. It is not necessary to tbe relief granted that it should be. If the рlaintiff was insane, his deed was void and might be so decreed, although there was no conspiracy and no fraud. This issue might affect the liability of Wager’s co-defendants, against whom, as well as Wager, the judgment went for costs, but wе cannot consider any question affecting them alone, because all the defendants joined in the motion for a new trial and the petition in error, and if the judgment was correct as to one it must be affirmed as to all. (Dorsey v. McGee,
Finally it is contended that Wager should receive restitution of the consideration by him paid. This, in the case of an insane person, is not essential as a condition of granting relief. (Dewey v. Algire, supra; Rea v. Bishop,
Affirmed.