Houck v. Bridwell

• Citation: 28 Mo.App. 644
• Parties: LOUIS HOUCK, Respondent, v. IDA BRIDWELL et al., Appellants.
• Decision Date: 31 January 1888
• Court: Missouri Court of Appeals

28 Mo.App. 644

LOUIS HOUCK, Respondent, v. IDA BRIDWELL et al., Appellants.

Court of Appeals of Missouri, St. Louis.

January 31, 1888

APPEAL from the Mississippi Circuit Court, HON. JAMES A. BOONE Special Judge.

Reversed.

ALONZO HAWKINS, for the appellants: The court erred: (1) In overruling defendant's motion or demurrer to the introduction of any evidence by plaintiff. Dillon v Bowles, 77 Mo. 604; Story on Cont. (4 Ed.) secs. 22, 60 69, 70. (2) In giving instruction number one for plaintiff. 1 Story on Cont., secs. 15, 22, 32; 2 Story on Cont., sec. 142; Jones v. Jones, 2 Swan 606, 608; Hughs v. Connor, 1 Sneed 622; Hawkins v. Humble, 5 Cold. 534; Abernatha v. Black, 2 Cold. 314, 317, 623; Israel v. Perry, 2 Cold. 620; Lowery v. Naff, 4 Cold. 370; Massey v. Taylor, 5 Cold. 442, 440; Hunter v. Setherer, 1 Bax. 170. (3) In refusing to give instructions asked by defendants. Dillon v. Bowles, 77 Mo. 604; McCarty v. Roundtree, 19 Mo. 345; 6 Mass. 301; 100 Mass. 240; 10 Allen 564; 1 Hare & Wallace, Am. Leading Cases, 306, 309, 310; 1 Story on Cont., secs. 60, 69, 70, 454. (4) In overruling defendants' motions for a new trial and in arrest.

J. J. RUSSELL, for the respondent: It is not assigned as error that the petition did not state a cause of action. Coy v. Robinson, 20 Mo.App. 462; Wheeler v. Manufacturing Company, 23 Mo.App. 190; Cuomo v. City, 24 Mo.App. 567. Appellants assign as error the giving of instruction number one for plaintiff, but the attention of the trial court was not called to it in the motion for new trial. The law provides for the appointment of a next friend by the court. Rev. Stat. sec. 3470. To say that the next friend so appointed has no power to procure an attorney is to render nugatory and useless the above provision of our statute law. The common law of the land still holds to the doctrine that a minor is liable for necessaries. The law creates the promise. Bishop on Contracts (2 Ed.) sec. 266; 1 Parsons on Contracts (2 Ed.) 244. No reference is made in the motion for a new trial to the admission or rejection of evidence, and will not be considered by the appellate court. Snell v. Harrison, 83 Mo. 652; Simpson v. Schulte, 21 Mo.App. 639. The attention of the trial court was not called by the motion for new trial to any instructions refused, hence the same will not be considered in the higher court. Light v. Railroad, 89 Mo. 108. It is even extremely doubtful whether the motion in this case, called a motion for a new trial, is such as to entitle appellants to have any of the alleged errors reviewed. It is, in fact, simply a motion to set aside the verdict, but does not ask for a new trial. Leonard v. Linch, 9 Mo.App. 584.

OPINION

ROMBAUER J.

A preliminary question to be disposed of in this case is, whether plaintiff's motion to dismiss the appeal is well taken. The motion asserts that appellants have failed to comply with the requirements of section 3773, Revised Statutes, and of rule fifteen of this court, in this, that the brief and statement filed do not give a clear and concise statement of the pleadings and facts shown by the record, and do not distinctly and separately set out the errors complained of.

The appellants have filed a printed brief in the case, which purports to contain a statement of the issues, evidence, errors complained of, and a citation of authorities bearing upon the subject. The statement is not full nor clear, nor are the errors complained of distinctly and separately set out. It is evident, however, that the brief thus filed was intended to be a compliance with the requirements of the statute and our rule. A rigid insistence upon a strict and literal compliance with the law and rule would result in a dismissal of most appeals coming to this court. For that reason, among others, we have heretofore held that, where a statement and brief, however inartificial, sufficiently advise the court and adverse counsel of the errors complained of, a motion to dismiss will not lie. In conformity with this holding the motion to dismiss filed in this case will be overruled.

The action is one to recover the reasonable value of legal services, claimed by plaintiff to have been performed by him under a contract with one Bridwell, in an action prosecuted by the defendants, minors at the time, through said Bridwell as their next friend. It is not claimed that Bridwell had any other authority to employ counsel for defendants except such as the law, statutory or other, may confer upon a next friend in such cases. One of the defendants is still a minor, the other is of age, but there is neither allegation nor evidence that the latter ratified the contract after arriving at the age of maturity, or ever promised to pay anything. The defendants filed answers raising the general issue, but upon the trial objected to the introduction of any evidence on the ground that the petition failed to state facts sufficient to constitute a cause of action. This objection was overruled and the defendants excepted. There was judgment for plaintiff for one hundred dollars, whereupon the defendants renewed their objection to the sufficiency of the petition by motion in arrest, and now urge it here as a ground for reversal of the judgment.

Our statute is silent on the authority of a next friend to make a contract for legal services on behalf of an infant. It provides for his appointment by the court, and then proceeds: " The guardian or next friend of an infant who commences or prosecutes a suit shall be responsible for the cost thereof, unless such infant shall be permitted by the court to sue as a poor person." Sec. 3476. If any inference is drawn from the statute it would seem to be the one that, as the next friend cannot even bind the infant for costs, he can, a fortiori, not bind him for other expenses of the litigation.

The power to bind an infant by contract made on his behalf rests with the guardian of his person and estate, or the curator of his estate, as the case may be, with the sanction of the probate court. The statute provides that: " It shall be the duty of all (such) guardians or curators to represent their wards in all legal proceedings, to...