Ex parte Cabaniss, 8 Div. 837

• Decision Date: 18 November 1937
• Docket Number: 8 Div. 837
• Parties: Ex parte CABANISS.
• Court: Alabama Supreme Court

178 So. 1

235 Ala. 181

Ex parte CABANISS.

8 Div. 837

Supreme Court of Alabama

November 18, 1937

Rehearing Denied Jan. 13, 1938

Appeal from Certiorari to Circuit Court, Jackson County; A.E Hawkins, Judge.

Petition of Paralee Cabaniss, as guardian of Louis Cabaniss, for common-law certiorari to the circuit court of Jackson county in equity.

Certiorari denied.

73k28(2) Decisions and Proceedings of Courts, Judges and Judicial Officers.

Common-law certiorari to review proceeding in circuit court for alleged want of jurisdiction, in that petition for removal of minor's guardian was filed in name of minor's next friend rather than in minor's name by his next friend would be denied, notwithstanding demurrer to petition was overruled, where, for aught that appeared, court overruled demurrer, that court might, of its own motion, institute removal proceedings. Code 1923, §§ 8227, 8229, 8230.

Proctor & Snodgrass, of Scottsboro, for petitioner.

Foster & Hagan, of Scottsboro, for respondent.

BOULDIN Justice.

Petition for common-law certiorari to review and vacate proceedings in circuit court of Jackson county, in equity, for alleged want of jurisdiction.

The petition discloses that Paralee Cabaniss was duly appointed and qualified as guardian of the estate of her son, Louis Cabaniss, a minor; that a petition was filed in the probate court by "Lettie Adams, as the next friend of Louis Cabaniss, a minor," praying for a removal of the guardian on grounds therein stated; that, at this stage, the guardianship and administration thereof were removed to the circuit court, in equity, by decree of that court.

Thereupon the guardian filed a demurrer to the petition for removal. One ground of demurrer was this: "1. The petition is filed in the name of the next friend of the minor, rather than in his own name, by his next friend, contrary to the provisions of Section 8227 of the Code."

The demurrer was overruled. Thereupon the guardian filed her petition for certiorari in this court.

The theory of the petitioner in the present proceedings is that the petition for removal should have been by "Louis Cabaniss, a minor, suing by next friend, Lettie Adams"; that a petition by "Lettie Adams, as next friend of Louis Cabaniss, a minor," is the suit of Lettie Adams, without litigable interest, as sole party plaintiff; that the minor is not a party; that a decree would not be binding on him, and the court is therefore without jurisdiction.

It is further insisted no amendment could be had making the minor a party, because this would work an entire change of parties; that, the court being without jurisdiction for want of a party plaintiff, the remedy is by certiorari.

In all ordinary suits brought on behalf of a minor, these several contentions are supported by the decisions of this court.

That a complaint or bill in equity, wherein the plaintiff is styled as in this petition for removal, is a suit by Lettie Adams, as sole plaintiff, that the minor is not a party, and that, as next friend, she has no standing as a party plaintiff, but is merely a species of attorney, permitted to act for the infant in the conduct of the suit, and no amendment can be made because of complete change of parties is fully supported by Fowlkes v. Memphis & Charleston Ry. Co., 38 Ala. 310, followed by Dougherty v. Powe, 127 Ala. 577, 581, 30 So. 524, and conceded in Ex Parte Kelen, 223 Ala. 87, 134 So. 856, where such case, as touching amendments, is differentiated from suits by a guardian on behalf of the ward. See, also, Upshaw v. Eubank, 227 Ala. 653, 151 So. 837; H.H. Montgomery, Sup't of Banks v. Duffey, 226 Ala. 26, 145 So. 420.

Since no appeal lies from a decree on demurrer to a petition in equity for the removal of a guardian, because not within the class of interlocutory decrees appealable under Code, 6079, certiorari is the proper remedy to test the question of jurisdiction in the premises. Devane v. Smith, 216 Ala. 177, 112 So. 837.

This brings us to consider the nature of the jurisdiction of a court of equity touching the removal of guardians of the estates cf minors whose administration is pending in such court.

Section 8227 of the Code, under which the petition for removal was filed in the probate court, evidently contemplates a proceeding in the name of the ward, by the person named as next friend. See section 8229...