Graham v. Nippress

• Citation: 192 N.W. 683,222 Mich. 386
• Decision Date: 23 March 1923
• Docket Number: No. 165.,165.
• Parties: GRAHAM v. NIPPRESS.
• Court: Michigan Supreme Court

222 Mich. 386

192 N.W. 683

GRAHAM

v.NIPPRESS.

No. 165.

Supreme Court of Michigan.

March 23, 1923.

Appeal from Superior Court of Grand Rapids, in Chancery; Major L. Dunham, Judge.

Suit by Margaret Graham against Elmer Nippress. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Fred C. Temple, of Grand Rapids, for appellant.

S. Wesselius and Irving H. Smith, both of Grand Rapids, for appellee.

McDONALD, J.

Plaintiff brings this action to restrain the defendant from interfering with her possession of certain real estate in the city of Grand Rapids, Mich., and to compel him to convey to her any interest which he may have acquired in the property by virtue of certain tax deeds for city taxes.

Her bill alleges that she was the wife of James M. Graham, who died intestate on August 20, 1904, leaving as his sole estate the property in question, consisting of a house and lot in Grand Rapids. They had no children. The property was their homestead. After his death she continued to reside on the premises until June, 1915, when she was adjudged an inebriate and mentally incompetent, placed under guardianship and committed to the Michigan Asylum at Kalamazoo, by the probate court for the county of Kent. She is still there and under guardianship. The guardian has done nothing to conserve the property. It was sold by the city for taxes for the years 1915, 1916 and 1917. Defendant, having acquired the title, commenced proceedings in the superior court of Grand Rapids for a writ of assistance, whereupon plaintiff brought this action. On the hearing the superior court judge dismissed the petition for a writ of assistance, canceled the tax sales, and permitted the plaintiff to redeem, on the payment into court of $84.45, together with taxable costs, including in attorney fee of $50. From the decree entered the defendant has appealed.

It is first urged by counsel for the defendant that plaintiff, being mentally incompetent and under guardianship, could only maintain her suit by a next friend or by her guardian. This objection was not raised in the lower court. It was not called to the court's attention by the pleadings or by motion to dismiss. The statute section 12379, C. L. 1915 (section 28, c. 12 of the Judicature Act), provides that in such cases, before the declaration or bill of complaint is filed or any process is issued, the circuit judge shall appoint a competent and responsible person to appear as next friend for such plaintiff.

‘But it does not necessarily follow that a strict compliance is undispensable to the validity of the proceedings.’ Kees v. Maxim, 99 Mich. 493, 58 N. W. 473;McDonald v. Weir, 76 Mich. 243, 42 N. W. 1114;Sick v. Aid Association, 49 Mich. 50, 12 N. W. 905;Dillon v. Howe et al., 98 Mich. 168, 57 N. W. 102.

‘It is not an absolute prerequisite to jurisdiction of an action by an infant that he should sue by guardian ad litem or next friend; but a failure to appoint a guardian ad litem or next friend for an infant plaintiff merely affects the regularity of the proceedings, and the defect is one which before verdict is amendable, and after verdict or judgment is cured.’ 22 Cyc. 644.

The guardian, who should have looked after the interests of his ward, abandoned the paintiff and her property. The court should have appointed some other competent person to represent her in prosecuting her suit and undoubtedly would have done so if the matter had been called to his attention. If counsel desired to raise the question he should have done so seasonably by motion to dismiss. Not having done so, he is now in no position to complain. However, he has not been prejudiced. So far as the defendant's interests are concerned, the purpose of the appointment of a next friend is that there may be some responsible party to whom he may look for his costs in case he prevails in the suit. As the trial court directed the plaintiff to pay the amount of the taxes, interest, and costs into court as a condition to the canceling of the deed, the object of the statute is secured to the defendant as effectually as it would have been if a responsible party had been appointed. In this respect the decree cured any defect in the proceedings.

It is next contended by counsel for the defendant that the property belongs to the estate of James M. Graham, that the plaintiff was not the wife of Graham and has no interest upon which she can maintain her suit. Counsel bases this contention on the claim that Graham had a wife in Buffalo, N. Y., from whom he was never divorced, and who lived until December, 1895. This claim is not...