Wilson v. Me-ne-chas ex rel. Shu-ka-see, 40 Kan. 648

Wilson v. Me-ne-chas ex rel. Shu-ka-see

40 Kan. 648 | Kan. | 1889

Opinion by

Holt, C.:

There is no error of the court in overruling the suggestion of the defendant to correct the transcript of the justice, for the plain reason there was no evidence offered to support it. From the bill of particulars and the affidavit in replevin it is very evident Me-ne-chas claimed that Shu-ka-see was the real plaintiff in the action, and although it would have been correct to have followed the provisions of § 10, chapter 81, Compiled Laws of 1885, and have had Me-ne-chas appointed as guardian to the suit, or possibly to have commenced the action under the form and style of “Shu-ka-see, by Me-ne-chas his next friend,” yet this irregu*651larity is without any possible prejudice to the defeudant. Shu-ka-see appears iu the pleadings as the real plaintiff, and under the evidence is shown conclusively to be the real party in interest; but the irregularity is so unimportant that the attorneys for plaintiff did not even suggest an amendment; which would have been granted as a matter of course, if asked; without such an amendment, we think the defendant could not possibly have been misled to his prejudice. We think the court right in overruling the motion to dismiss.

The affidavit in replevin was made by Me-ne-chas. In that affidavit Me-ne-chas states he is the father of the plaintiff, not the plaintiff himself, and that the plaintiff is the owner of the horse in question. The affidavit is objected to because it was not made by the plaintiff, his agent, or attorney. This Indian boy was only about fifteen years of age, and the father was his natural guardian. (Comp. Laws of 1885, ch. 46, § 1.) Was the guardian the agent of his child for the purpose of bringing the action and making the affidavit? An agent is one who has been intrusted with the business of another; a guardian is one who is entitled to the custody of the property of an infant. We believe that the natural guardian of a minor is, for the purpose of making an affidavit in replevin, the agent of such minor. If the minor should be so young as to be incapable of making the affidavit himself or of appointing an agent or applying for a guardian to the suit, it would seem to be quite right and proper for the natural guardian to make such affidavit for him. We believe the guardian, either the natural guardian or one appointed for the conduct of the action, would be a proper party to make an affidavit in replevin. There was no error in the rejection of the chattel-mortgage records of Jackson county. The white horse six years old, spoken of in this action, was not identified as being the white horse eight years old claimed to have been mortgaged by Sheppard.

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.