Buckley v. Collins

• Decision Date: 14 June 1915
• Docket Number: 46
• Citation: 177 S.W. 920,119 Ark. 231
• Parties: BUCKLEY v. COLLINS
• Court: Arkansas Supreme Court

177 S.W. 920

119 Ark. 231

BUCKLEY v. COLLINS

No. 46

Supreme Court of Arkansas

June 14, 1915

Appeal from Pike Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

O. A Featherston and W. S. Coblentz, for appellant.

1. It was error to allow the filing of the amended and substituted complaint. 38 S.W. 703; 94 Id. 277.

2. There was no consideration for the checks. The evidence shows this, and the verdict is entirely unsupported by the evidence. 70 Ark. 385; Ruling Case Law, "Appeal and Error," § 167.

W. T Kidd, for appellee.

1. The infant, and not the next friend, is the real party. The defendant entered his appearance and filed an answer. 90 Ark. 316; 101 Id. 124; 71 Id. 258; 157 U.S. 198; 94 Ark. 178.

2. The checks were assignable by delivery. 70 Ark. 215.

3. A verdict based upon conflicting evidence is conclusive. 90 Ark. 100. If there is any evidence to sustain it, the verdict is conclusive. 102 Ark. 200.

OPINION

WOOD, J.

On the 7th of October, 1912, A. T. Collins, guardian for J. A. Collins, filed a claim against A. M. Buckley for $ 4.95 for time checks issued by Buckley. On the 18th day of October, 1912, there was filed in the justice court what is designated in the record as an amended and substituted complaint, in which it is recited as follows: "Comes the plaintiff, J. A. Collins, by his next friend, A. T. Collins, and for his cause of action states." It then sets forth that the defendant, A. M. Buckley, is engaged in the mercantile business in the town of Kimberly, Pike County, Arkansas, and that in connection with his business he issued certain checks commonly called brozine, good for (naming the amount) in trade; that these checks were issued to one Sanders, and were conditioned that the defendant would redeem the checks during the month either in merchandise or cash when presented to him by the holder thereof. He further alleged that he owned $ 4.95 in these checks; that he had made demand on the defendant and he refused to redeem the same.

Appellant first contends that the court erred in permitting the appellee to file what is called the amended and substituted complaint. At the time this pleading was filed there had been no written pleading filed in the justice court. The account that was filed before the justice was styled, "A. T. Collins, guardian for J. A. Collins." Although the account purported to be filed by A. T. Collins as guardian for J. A. Collins, it was not error for the court to permit the appellee, through A. T. Collins, to file what is termed the amended and substituted complaint. By so doing a new suit was not instituted, for it is the infant, and not the party who represents him in the litigation, that is the real party to the suit. As is said in Morgan v. Potter, 157 U.S. 195, 39 L.Ed. 670, 15 S.Ct. 590: "It is the infant, and not the next friend, who is the real and proper party. The next friend, by whom the suit is brought on behalf of the infant, is neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another. The suit must be brought in the name of the infant, and not in that of the next friend."

Under our statute "the action of an infant must be brought by his guardian or next friend." Kirby's Digest, § 6021. But whether the suit be brought by the guardian or the next friend, it is at least the suit of the infant and must be brought in the name of the infant by the guardian or the next friend. The infant can not act for himself in bringing a suit, but it is nevertheless his suit, no matter by whom brought. The mistake as to the capacity in which the party bringing the suit for the infant acts does not make it a suit by a different party. See St. Louis, I. M. & S. Ry. Co. v. Haist, 71 Ark. 258, 72 S.W. 893.

There was evidence tending to show that the appellant put in circulation checks which read as follows "Good for $ 1 in trade. A. M. Buckley, Reedland." Appellee, who was doing business through his guardian, acquired a number of these checks, having accepted the same in exchange for merchandise, and he presented them to appellant and appellant redeemed them either in merchandise or by paying the money therefor. The particular check in controversy appellee acquired in the same way, and he presented same to ap...