Fletcher v. Parker

• Decision Date: 28 April 1903
• Citation: 44 S.E. 422,53 W.Va. 422
• Parties: FLETCHER v. PARKER.
• Court: West Virginia Supreme Court

44 S.E. 422

53 W.Va. 422

FLETCHER v. PARKER.

Supreme Court of Appeals of West Virginia.

April 28, 1903

Submitted January 20, 1903.

Syllabus by the Court.

1. A next friend of an infant cannot compromise a judgment recovered in action in the name of the infant by such next friend, and, on part payment, release the judgment.

2. In a writ of error in this court from a judgment, an order is made reciting that it appeared from a writing filed that the "matters in difference herein" have been settled and dismissing the writ of error "agreed" on motion of the plaintiff in error; such order is not a bar against the judgment, and does not discharge it.

Appeal from Circuit Court, Summers County; J. M. McWhorter, Judge.

Bill by Louise Fletcher, by her next friend, against J. A. Parker. Decree for defendant, and plaintiff appeals. Reversed.

JOHN OSBORne and Thompson & Lively for appellant.

Miller & Read, for appellee.

BRANNON J.

Louise Fletcher, an infant, by Frank Lively, as her next friend filed a bill against J. A. Parker in the circuit court of Summers county, stating that, suing by her next friend, J. R Fletcher, she had recovered in said court a judgment for $750 against Parker; that Parker obtained from the Supreme Court a writ of error to the judgment, but, before it was passed upon on its merits, Parker effected a compromise with said next friend, Fletcher, by which Fletcher agreed to take $200 in full payment of the judgment, and that then Parker procured some order to be entered by this court, which was sent down to the circuit court, not saying what order, nor in fact filing it; that said next friend, Fletcher, had no right to make such compromise or collect the judgment; that, as the plaintiff was an infant, she was not bound thereby; that said judgment was yet unpaid. The bill stated that Parker was owner of certain real estate, and prayed that the judgment of the Supreme Court, and that of the circuit court (without saying what it was) pursuant to the order of this court, be set aside, as invalid, and that the real estate be sold to pay the judgment. Parker demurred to the bill and filed an answer. This answer sets up that Parker, at the request of said next friend, Fletcher, compromised said judgment, and that Parker paid Louise Fletcher and J. R. Fletcher $200 in full settlement and discharge of said judgment and all their claim against him, and they executed a full and final release and discharge, and also made an indorsement and release on the margin of the record of the judgment, and executed an order to the circuit court to dismiss the suit. (None was pending.) The answer further set forth that then an order was entered in the Supreme Court dismissing said writ of error agreed. The order made by the Supreme Court reads thus, as exhibited with the answer: "It appearing to the court by a written agreement duly signed by the parties interested in this case, and filed with the papers, that the matters and difference herein have been fully settled, and on motion of plaintiff in error, by Miller & Read, his attorneys, this case is dismissed agreed, at cost of plaintiff in error, except statute fee, which is ordered to be certified to the circuit court of Summers county." The decree of the circuit court recites that the cause was heard on the bill, demurrer, pleas, and answer, and general replication, and that the court was of opinion that the bill was not good, and sustained the demurrer to it, and, the plaintiff not wishing to amend the bill, "the court having decided the merits, and the case being submitted to the court for its decision on the merits upon all the papers and proceedings aforesaid, and the court having considered said case on the merits, and being of opinion that the plaintiff is not entitled to the relief prayed therein, it is adjudged, ordered, and decreed that the plaintiff's bill be dismissed." The plaintiff appeals.

We have a bill plainly bad, for the reason that it does not show that execution was returned "no property found," or that two years had passed without execution. Dunfee v. Childs, 45 W.Va. 155, 30 S.E. 102. And it does not aver that the property sought to be sold would not, by rental, pay the debt in five years. So there was no error in sustaining the demurrer.

Does the bill show a sustainable case? That the contract of compromise is not valid to bind the infant against disaffirmance is plain. It operated to her prejudice, and can be repudiated by her. She could not compromise. 16 Am. & Eng. Ency. L. 286. She thus did not bind herself by her own act. Is the compromise by her next friend binding on her? It is not. "A next friend cannot compound a judgment, nor release nor discharge a cause of action, out of court. He has no power to settle or compromise without the express sanction of the court. But a compromise may be enforced by the court when made for the infant's benefit." 14 Ency. Pl. & Prac. 1040. In the present case the compromise lost to the infant three-fourths of the judgment. Why should the act of a next friend be binding in this instance? He is not a party, but the infant is the real party, to the suit. The next friend is one to prosecute and look after the suit. His duties and powers end with judgment recovered. He cannot receive pay of it, but payment must be made to the regular guardian or to the court. Lawson v. Kirchner, 50 W.Va. 344, 40 S.E. 344; 14 Ency. Pl. & Prac. 998, 1037; Miles v. Kaigler, 30 Am.Dec. 425; Smith v. Redus; 44 Am.Dec. 429. A compro mise by a next friend may be made good, in a suitable case, by the court's approval in the case. Tripp v. Gifford (Mass.) 29 N.E. 208, 31 Am.St.Rep. 530. Many cases are cited in 44 L.R.A. 168. But no order of the circuit court appears. It could make none after judgment.

What becomes of the $200 paid under the compromise? Shall it go to Parker's credit? No; because, to allow this, we have...