Bazor v. J. J. Newman Lumber Co

• Decision Date: 29 October 1923
• Docket Number: 23582
• Citation: 97 So. 761,133 Miss. 538
• Court: Mississippi Supreme Court
• Parties: BAZOR v. J. J. NEWMAN LUMBER CO

97 So. 761

133 Miss. 538

BAZOR v. J. J. NEWMAN LUMBER CO

No. 23582

Supreme Court of Mississippi

October 29, 1923

Division B

Suggestion of Error Overruled Nov. 26, 1923.

APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON Judge.

Action by Estus Bazor against the J. J. Newman Lumber Company. From a judgment sustaining demurrers to declarations and dismissing the cause, plaintiff appeals. Affirmed.

Judgment affirmed.

R. N. Miller, L. F. Hendrick, and W. L. Cranford, for appellant.

The two pleas of appellee replied to set up the fact that Estus Bazor, together with his father and mother, J. W. Bazor and Margaret Bazor, as his next friends, on the day of January, 1920, filed an ex parte petition in vacation in the chancery court of Covington county, by which he was emancipated by decree of said court. Our replications averred that the chancery court of Covington county got no jurisdiction of said suit to remove appellant's disabilities, because two of the next of kin within the third degree did not join therein, and that he had a number of brothers and sisters, none of whom joined in said petition. Our contention is that two of his nearest of kin and his next friend must join with him in petition. Naming his father and mother as next friends is not enough. In other words a next friend is necessary for him to sue at all and the statutes which this court has strictly construed, requires two of his nearest of kin to join. This was exactly what was held in the Jackson v. Jackson Case, 105 Miss. 868, on pages 874 and 875; except in the Jackson case it was held that all the kin within the third degree known to the minor must join in the petition in an ex parte proceeding, because the case was decided before chapter 123 of the Laws of 1918 was passed. Now if we consider the father his next friend to enable him to sue, then his mother was the only kin who joined him. The statute (section 545) and as amended by chapter 123 of the Laws of 1918, must join him, one, his next friend to enable him to sue, and two of his nearest of kin, are all made necessary parties by the statutes to guard his interests. This precise question is decided in favor of our contention by the following cases: Jackson v. Jackson, 105 Miss. 868, 63 So. 275, Notes to said case, Annotated Cases 1915 D 490; Hardy et al. v. Pepper, 128 Miss. 27; Milham et al. v. Higdon, 95 So. 433, and the cases cited by these authorities.

Tally & Mayson and H. Cassedy Holden, for appellee.

Under the law as it existed prior to the enactment, of chapter 123 (page 122, Acts of 1918), the contention of appellant, would manifestly be sound, since the case of Jackson v. Jackson, 105 Miss. 868, 63. So. 275, was based on section 545, Code of 1906. The construction placed upon section 545, Code of 1906, in the Jackson case, was no doubt responsible for the amendment of the law, as found in the Act of 1918.

The cases of Milham et al. v. Higdon, 131 Miss. 260, 95 So. 433, and Hardy et al. v. Pepper, 128 Miss. 23, 90 So. 181, cited by a counsel are decisions on section 545, Code of 1906, before enactment of chapter 123, Acts of 1918, and are not authorities in the instant case.

We insist that the application, to remove the disability of minority, on the part of the father and mother, as authorized by chapter 123, Acts of 1918, should have been granted, and that the decree removing the disabilities of minority of their son is authorized by that statute, that no other person need be made a party to the proceedings at all.

The legislature evidently thought, if a minor's father and mother desired the disability of the minor removed, then, it was a matter that did not concern any one else. However, this court has expressly decided in the case of Hardy v. Pepper, 128 Miss. 27, 90 So. 981, that the proceeding had in the instant case was perfectly valid. Says the court: "It will be noted that section 545 was amended by chapter 123, Laws of 1918, and it is now only necessary for two of such kindred to unite in the application."

It is respectfully submitted that the petition for the removal of the disability of minority filed in the chancery court of Covington county, conferred jurisdiction upon that court, and the decree thereon is a valid judgment. This proceeding was under the provisions of section 302, Hemingway's Code, as amended by chapter 123, Laws of 1918, and was regular and lawful in every respect. This statute does not require the petition to be filed by next friend as in the case of section 301, Hemingway's Code. But, if it does so require, then its requirement was met by naming the mother and father the next friends of the minor.

The decree removing the disability of minority being valid, the release executed by the appellee was valid, and the demurrer was properly sustained by the lower court.

OPINION

COOK, J.

The appellant filed a declaration in the circuit court of Lamar county, alleging personal injuries and seeking to recover damages therefor in the sum of two thousand five hundred dollars. The appellee, defendant in the court below, filed two special pleas, averring that at the time of the alleged injury the appellant was a minor; that, acting through his father, J. W. Bazor, and his mother, Margaret Bazor, as next friends, he filed a petition in the chancery court of Covington county in which he set forth the fact of the injury sustained by him; that the appellee denied liability for such injury, but had offered to pay him an agreed sum to avoid litigation; that he had conferred with counsel and friends and upon their advice represented that it would be to his best interest to compromise and settle any claim which he had against appellee on...