Collins v. Gillespy

• Decision Date: 30 June 1906
• Parties: COLLINS v. GILLESPY.
• Court: Alabama Supreme Court

41 So. 930

148 Ala. 558

COLLINS v. GILLESPY.

Supreme Court of Alabama

June 30, 1906

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

"To be officially reported."

Action by Mamie Collins, an infant, by her next friend, against John S. Gillespy, as clerk of the city court of the city of Birmingham. From a judgment sustaining demurrers to the petition, plaintiff appeals. Affirmed.

Mamie Collins, a minor, by her next friend and father, recovered judgment in the Birmingham city court against the Birmingham Railway Light & Power Co. for the sum of $25 and the costs of the suit. This amount together with the costs, was paid to the clerk and register of the city court. The next friend and also the attorney of record for the next friend made demand upon the clerk and register for the said sum of $25, and upon his refusal to pay the same over to either of them, the next friend filed a petition seeking to secure an order from the judge of the court requiring the payment of said sum to the next friend. The petition alleges the above facts. The clerk and register answered said petition, admitting all the allegations therein contained, but alleged that he was advised by counsel that as such clerk and register cannot legally pay over the money in his hand to any one except the general guardian of the minor. He also filed demurrers raising this same question. The demurrers were sustained.

Ward &amp Drennen, for appellant.

J. S Gillespy, pro se.

DENSON J.

"It is the general rule that no one but a regularly qualified guardian of an infant has authority to receive payment, and enter satisfaction of a judgment recovered in favor of such infant, and that a next friend has no such authority." And although there are authorities which seem to take the contrary view, this court has decided that a next friend has no such authority. Isaacs v. Boyd, 5 Port. 388; Smith v. Redus, 9 Ala. 99, 44 Am. Dec. 429; 17 Am. &amp Eng. Enc. of Law (2d Ed.) p. 859, and cases cited in note 10. See, also, with respect of the office of a prochein ami, the following cases: Thomason v. Gray, 84 Ala. 559, 4 So. 394; Cook v. Adams, 27 Ala. 294; Cooper v Maclin's Heirs, 25 Ala. 299; Riddle v. Hanna, 25 Ala. 484; Klaus v. State, 54 Miss. 644; Mitchell v. Connolly, 1 Bailey (S. C.) 203. If the next friend has not the authority to receive payment or enter satisfaction, it follows logically that an attorney who derives the only...