Hill v. Reed

• Decision Date: 12 May 1909
• Docket Number: Case Number: 2199 OK Ter
• Citation: 1909 OK 100,103 P. 855,23 Okla. 616
• Parties: HILL v. REED
• Court: Oklahoma Supreme Court

1909 OK 100

103 P. 855

23 Okla. 616

HILL v. REED

Case Number: 2199 OK Ter

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 1. INFANTS--Guardian Ad Litem or Next Friend. Under sections 4229, 4937, Wilson's Rev. & Ann. St. 1903, a minor may institute and prosecute a suit in justice court by some adult as his next friend or by guardian ad litem appointed by the justice before whom the action is brought.

2. JUSTICES OF THE PEACE--Action by Minor--Appeal--Amendment. Failure of a minor plaintiff to institute and prosecute his action in a justice court by some one as next friend or guardian ad litem is not a jurisdictional defect, but an irregularity that may be cured by amendment on appeal in the district court, where leave was asked for such purpose by the minor plaintiff.

3. APPEAL AND ERROR--Amendment of Pleadings--Presumption. Where leave is granted to a minor plaintiff to amend his bill of particulars to show that he prosecutes his action by his adult brother as next friend, and where both parties to the action and the court in the subsequent proceedings in the trial treat such amendment as made, and no objection was made in the trial court by defendant that such amendment had not actually been made, it will be treated by the Supreme Court on appeal as having been made.

REED.

Error from District Court, Kay County.

Action by John Reed against Roy Hill before a justice. On appeal an amendment to the complaint, showing that the action was prosecuted by George Reed, next friend of plaintiff, was allowed. Judgment for plaintiff, and defendant brings error. Affirmed.

This action was originally instituted in the justice court of W. H. Smart, a justice of the peace within and for the city of Newkirk, Kay county, by defendant in error, hereinafter called plaintiff, against plaintiff in error, hereinafter called defendant, to recover for work and labor performed. A change of venue was taken from the justice court in which the case was originally filed to the justice court of M. W. Musselman, also a justice of the peace within and for the city of Newkirk. In that court judgment by default was rendered against defendant. Defendant appealed to the district court. After the case had been called for trial in the district court and a jury had been impaneled, plaintiff, speaking through his attorney, made application to the court to amend his bill of particulars filed in the justice court, in order to substitute and show that he prosecuted the action in the name of George Reed as his next friend. The amendment was permitted by the court. It appears from the record that at the time John Reed, the real plaintiff, brought the action in the justice court, as well as at the time of the trial in the district court, he was a minor, and that no guardian ad litem was appointed by the justice court. The trial in the district court resulted in a judgment for plaintiff, from which judgment this proceeding in error was brought in the Supreme Court, where it was pending at the time of the admission of the state into the Union, and is now before us under the terms of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267) for final disposition.

Sam K. Sullivan, for plaintiff in error, cited: Sick v. Association (Mich.) 12 N.W. 905; Linner v. Crouse, 61 Barb. 289; Hoftailing v. Teal, 11 How. Prac. 188; Segelkin v. Meyer, 94 N.Y. 473; Twine v. Carey (Okla.) 37 P. 1096; In re Mahoney, 34 Hun. 501; Dailey v. Doe, 3 F. 903.

Moss & Turner, for defendant in error. No brief reached the reporter.

HAYES, J.

¶1 For reversal of this case, defendant urges in his brief four assignments of error, which, in abbreviated form, are as follows: (1) The court erred in overruling the motion of plaintiff in error for a new trial. (2) The court erred in entering judgment against plaintiff in error, for the reason that it was without jurisdiction of the case, since the case was brought and prosecuted in the justice court by plaintiff, a minor, in his own name, and the justice court never obtained jurisdiction. (3) The court erred in granting plaintiff leave to amend his complaint, so as to show that he prosecuted the action in the name of George Reed as his next friend. (4) The court erred in entering judgment against plaintiff, for the reason that, although leave therefor was granted, no amendment to his petition was in fact ever made by which plaintiff's bill of particulars was made to show that plaintiff prosecuted the action by a next friend or guardian ad litem.

¶2 Since the propositions presented by the first three assignments are closely related, we shall consider them together.

¶3 In some jurisdictions, where it is provided by statute that infants shall sue by guardian ad litem appointed by the court, an action by an infant commenced by a next friend is unauthorized and irregular. Hoftailing v. Teal, 11 How. Prac. (N.Y.) 188; Freyberg v. Pelerin, 24 How. Prac. (N.Y.) 202.

¶4 Section 4937, Wilson's Rev. & Ann. St. 1903, which is section 10 of the Code governing the procedure before justices of the peace in civil cases, provides as follows:

"When a guardian to the suit is necessary, he must be appointed by the justice as follows: First. If the infant be plaintiff, the appointment must be made before the summons issues, upon the application of the infant, if he be of the age of fourteen years or upwards; if under that age, upon the application of some friend. The consent, in writing, of the guardian to be appointed, and to be responsible for the costs if he fails in the action, must be filed with the justice. Second. If the infant be defendant, the guardian must be appointed before the trial. It is the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present and consent, in writing, to be appointed; otherwise the justice may appoint any suitable person who gives such consent."

¶5 This section, as a careful reading will disclose, does not prescribe that actions shall not be prosecuted by an infant plaintiff or against an infant defendant except by a guardian ad litem appointed by the court, but provides, when such guardian is necessary, how and when the appointment shall be made by the justice.

¶6 Section 4229, Wilson's Rev. & Ann. St. 1903, being section 31 of the General Code of Civil Procedure, provides that an action of an infant may be brought by his guardian or next friend. This section of the statutes is, by section 5113, Wilson's Rev. & Ann. St. 1903, made to apply to proceedings before justices of the peace. It therefore follows, under the provisions of our Code, that plaintiff in the case at bar might have brought his proceeding in the justice court by some person as his next friend or by guardian ad litem appointed by the justice, and it remains for us only to determine whether the failure of plaintiff to institute his action by some one as next friend and of the court to appoint a guardian ad litem before the issuance of summons in the justice court was fatal to the jurisdiction of that court, or whether it was only an irregularity that might be amended during the subsequent proceedings in the case.

¶7 The question here presented has never been passed upon by this court, nor by the Supreme Court of the territory, nor has it, to our knowledge, been directly passed upon by the Supreme Court of Kansas, from which state our Code was adopted; but courts of other jurisdictions have frequently passed upon this question, and we think that the rule is well established contrary to the contention of defendant, and is stated, in 14 Encyclopaedia of Pleading & Practice, p. 1016, in the following language:

"Where the proceedings are conducted without the intervention of a next friend or guardian ad litem, in a case where one is required, or where the appointment is irregular, the judgment is irregular and voidable; but while a failure to appoint a next friend or guardian ad litum, or to sue by one, is irregular, it is merely that. The defect is not a jurisdictional one, and hence the judgment is not void."

¶8 Hicks v. Beam, 112 N.C. 642, 17 S.E. 490, 34 Am. St. Rep. 521, is an action which was originally brought in a justice court by a minor plaintiff, who recovered therein against defendant for work and labor done. After appeal by the defendant to the superior court, and during trial in that court, plaintiff's minority was disclosed for the first time, whereupon at the conclusion of the evidence defendant moved to dismiss the action for the reason that the court was without jurisdiction because plaintiff had failed to institute his suit in the proper manner, namely by a next friend duly appointed by the court. The Supreme Court of that state, in passing upon this contention of the defendant, said:

"The defendant in the case under consideration might have set up this preliminary defense along with the general denial, either by memoranda in the nature of a plea, or by an answer in the justice's court, or after appeal in the superior court by leave, and under the rule laid down in the cases we have cited it was his right to demand that the defense be passed upon in some way before the trial on the merits. * * * It was too late to raise the question by motion to dismiss after the testimony bearing upon the merits had been heard. The defendant may ordinarily get the benefit of the objection that the plaintiff is an infant by motion to amend at this stage of the proceeding, if the court in its discretion allows the amendment; but, where the disability still continues when such motion is made, the usual practice of the court is to protect the infant by allowing him also to amend his summons and complaint by inserting the name of a guardian or next friend."

¶9 It was held by the Supreme Court of California, in a well-considered case, where defendant moved to dismiss upon the ground that the plaintiff was a minor and that no guardian ad litem had been appointed, that it was...