78 S.W. 609 (Mo. 1904), Vaile v. Sprague

Citation:78 S.W. 609, 179 Mo. 393
Opinion Judge:BURGESS, J.
Party Name:VAILE et al., Appellants, v. SPRAGUE et al
Attorney:S. W. Hilt and C. C. Madison for appellants. Warner, Dean, McLeod & Holden, Carey May Carroll and Paxton & Rose for respondents.
Case Date:February 01, 1904
Court:Supreme Court of Missouri

Page 609

78 S.W. 609 (Mo. 1904)

179 Mo. 393

VAILE et al., Appellants,



Supreme Court of Missouri, Second Division

February 1, 1904

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.


S. W. Hilt and C. C. Madison for appellants.

(1) A party becomes a plaintiff only by his own choice and consent and there is no right or procedure known to the law by which a party may be forced into a suit as a plaintiff. R. S. 1899, sec. 544; Kirschman v. Scott, 166 Mo. 214. (2) Suits by infants may be commenced and prosecuted by general guardian or curator, but not by guardian ad litem. A guardian ad litem is properly appointed only in cases where the infant is defendant and has been served with process. R. S. 1899, secs. 550, 559, 560. (3) A next friend may be appointed in court where suit is intended to be brought in behalf of an infant and upon written petition of such infant, if over fourteen years of age, or, if under that age, upon like petition of a relative or friend, in which case notice thereof must first be given to the person with whom the infant resides. R. S. 1899, secs. 550, 551, 552, 553. (4) The guardian ad litem, if there was one, could not waive any right or admit anything. Collins v. Trotter, 81 Mo. 275; Revely v. Skinner, 33 Mo. 98.

Warner, Dean, McLeod & Holden, Carey May Carroll and Paxton & Rose for respondents.

(1) Plaintiffs were not entitled to a continuance on oral application without affidavit, nor because they had failed to bring in certain legatees, they already having had two years so to do. Kischman v. Scott, 166 Mo. 225; R. S. 1899, sec. 684. (2) Article 2, chapter 8, Revised Statutes 1899, only applies to suits which are brought in the first place by infants. When a suit already brought is revived because one of the plaintiffs has died, article 8, chapter 8 applies. (3) When a plaintiff dies his heirs can be brought in as plaintiffs. R. S. 1899, secs. 758, 760. (4) The court had power to appoint a guardian ad litem or a next friend for the infant plaintiffs; and where occasion arose to appoint a next friend, it was proper for the court to do so at the request of the defendants. Rogers v. Wolfe, 104 Mo. 13. (5) No oral objection was good as to any irregularity, if any, in appointment of next friend. Such objection should have been by a written reply. Rogers v. Marsh, 73 Mo. 70; Clowers v. Railroad, 21 Mo.App. 216; Ellingson v. Railroad, 60 Mo.App. 679; R. S. 1899, secs. 598, 602, 609. (6) The nephew, J. J. Vaile, did not die before his uncle, H. M. Vaile, but afterward, so that these minors were heirs of the nephew, not of the uncle. (7) Several legatees under the will were not made parties to the suit. The statute of limitations now bars any action against them, and, as the will can not be set aside in part, plaintiffs by their laches have put themselves in a position where they can never break the will, so that it would be useless to remand the case. Wells v. Wells, 144 Mo. 198. (8) Plaintiffs, even if all their claims were conceded, have shown no error which injured any one, and hence, under our statute, the case ought not to be reversed.


Page 610


To continue reading