Isle v. Cranby

• Decision Date: 25 October 1902
• Citation: 199 Ill. 39,64 N.E. 1065
• Parties: ISLE v. CRANBY.
• Court: Illinois Supreme Court

199 Ill. 39

64 N.E. 1065

ISLE

v.CRANBY.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Action by Mary A. Isle against Kate Cranby. Judgment for defendant was affirmed by the appellate court (101 Ill. App. 221), and plaintiff appeals. Reversed.James Linden and Guy Brockway, for appellant.

Langworthy & Raymond, for appellee.

HAND, J.

On the 2d day of October, 1900, Mary A. Isle entered a motion in the circuit court of Cook county that she be appointed next friend of her mother, Henrietta Sackman, a distracted person, to file and prosecute a bill in chancery in the name of Henrietta Sackman against Kate Cranby. The bill desired to be filed was presented to the court with the motion, and sought to compel Kate Cranby to account for certain moneys, promissory notes, mortgages, and other property in her possession belonging to Henrietta Sackman. The motion was supported by the affidavit of Mary A. Isle, to the effect that Henrietta Sackman for many years last past had been a distracted person, who, by reason of her unsoundness of mind, was incapable of managing or caring for her estate; that Henrietta Sackman had no conservator; that she was then under the control of Kate Cranby, who was also her daughter, and that the affiant had no interest in the subject-matter of the suit, or otherwise, adverse to the interest of Henrietta Sackman. Thereupon the court entered the following order: ‘In the matter of the application of Mary A. Isle to be appointed as next friend to file and prosecute the bill of Henrietta Sackman, a distracted person, against Kate Cranby. This matter coming on to be heard on the motion of Mary A. Isle, supported by the affidavit of said Mary A. Isle, and it appearing to the court, by the said affidavit, that the said Henrietta Sackman is a distracted person and that there is no conservator of the estate of said Henrietta Sackman, and that the said Mary A. Isle is a proper person to bring suit as next friend of said Henrietta Sackman, it is ordered that said Mary A. Isle be, and she is hereby, appointed as next friend of said Henrietta Sackman, to file and prosecute the bill in chancerty presented with said motion, said bill being against Kate Cranby.’ Thereupon the bill, which was brought in the name of ‘Henrietta Sackman, a distracted person, by Mary Isle, her next friend, duly appointed theretofore by this court,’ was filed, which afterwards having been amended, Kate Cranby appeared by her solicitor, and filed a demurrer thereto, and Henrietta Sackman appeared by her solicitor, and moved the court to dismiss the suit. The solicitor for Mary A. Isle, as next friend of Henrietta Sackman, moved the court to set the motion of Henrietta Sackman to dismiss the suit down for hearing for the purpose of determining the mental condition of Henrietta Sackman. This the court declined to do, but sustained the motion of Henrietta Sackman and the demurrer of Kate Cranby, and entered a decree dismissing the bill of complaint, as amended, ‘for want of jurisdiction, for the reason that the same is brought by the next friend, and not by a conservator,’ which decree has been affirmed by the appellate court. Henrietta Sackman has died since the filing of the transcript in that court, and Mary A. Isle, having been appointed her administratrix, and having been substituted in her stead in that court, has prosecuted an appeal to this court.

The first question presented by this record is, was this suit properly brought in the name of Henrietta Sackman, a distracted person, by Mary A. Isle, her next friend? We are of the opinion it was. Formerly the right of idiots and lunatics to sue in the courts was not recognized, but this rule has been universally abrogated, and at the present time such persons are as much entitled to have their rights settled by the courts as though they were sane. If an idiot or lunatic have a conservator, he should be represented by his conservator, unless for special reasons-as that the interests of the two are adverse-it be proper that some other person be appointed to represent him as next friend. If, however, a person of unsound mind has not been so adjudged, or he has no conservator appointed for him, the suit or proceeding is brought in the name of the incompetent by some responsible party to be appointed to represent him as his next friend. Mr. Daniell, in his work on Chancery Practice, thus states the rule: ‘Suits on behalf of a lunatic are usually instituted in the name of the lunatic; but, as he is a person incapable, in law, of taking any step on his own account, he sues by the committee of his estate, if any, or, if none, by his next friend, who is responsible for the conduct of the suit.’ Daniell, Ch. Pl. & Prac. (5th Ed.) p. 83. In Story's Equity Pleading the author (section 66) says: ‘Where persons are incapable of acting for themselves, although not strictly either idiots or lunatics, the suit may be brought in their name, and the court will authorize some suitable person to carry it on as their next friend. But in every such case it is in the discretion of the court to allow the suit to proceed or not, and it will order a stay or proceedings, or the bill to be taken off the file, if the suit is deemed improper.’ In Railroad Co. v. Munger, 78 Ill. 300, which was an action at law, the court say (page 301): ‘By our statute the conservator of a lunatic shall demand, ‘sue for, and receive in his own name, as conservator, all personal property of and demands due the ward,’ etc. Rev. St. 1874, c. 86, § 11. But until the appointment and qualification of the conservator it is clear suit is properly brought in the name of the lunatic.' In Brown v. Riggin, 94 Ill. 560, a bill in chancery was filed by James H. Riggin, an insane person, by his next friend, Ignatius Riggin, to contest a will. The case was reversed for lack of necessary parties defendant, but the propriety of bringing the suit by next friend was not questioned. In Speck v. Car Co., 121 Ill. 33, 12 N. E. 213, which was a partition suit, the bill was filed in the name of James Dunn, who was described therein as a lunatic, and who brought the suit by Simeon Straus, as his next friend. The court say (page 50, 121 Ill., and page 220, 12 N. E.): ‘We are not required to assume, from the evidence, that this lunacy [the lunacy of James Dunn] existed when the suit was commenced; but, if it did, no conservator having been appointed under our statute, the suit might be prosecuted in the name of the lunatic.’ Van Buskirk v. Van Buskirk, 148 Ill. 9, 35 N. E. 383, was a suit in chancery by an insane person suing by next friend. The court treats the proceeding as entirely proper, saying (page 26, 148 Ill., and page 387, 35 N. E.): ‘No conservator seems to have been appointed for his estate, but this suit has been brought for him by a next friend.’ In Ronan v. Bluhm, 173 Ill. 277, 50 N. E. 694, one of the complainants in the bill was an insane person suing by next friend. The court makes no comment on that fact, but seems to recognize such method of bringing suit as correct, and the established practice. In the case of Pyott v. Pyott, 191 Ill. 280, 61 N. E. 88, a bill for esparate maintenance was filed. The defendant being insane, the court appointed the defendant's son as his guardian ad litem and next friend, and gave leave to file a cross-bill. The defendant, by said guardian ad litem and next friend, filed a cross-bill to annul the marriage contract. The court, on page 289, 191 Ill., page 91, 61 N. E., say: ‘After an inquisition and appointment of a conservator for an insane person under the statutory provisions on the subject, all suits and proceedings in behalf of the lunatic should be brought by the conservator, unless the interests of the conservator are adverse to those of his ward, or for other sufficient reason the court shall deem it better to appoint some other person as next friend to appear for, counsel, prosecute, or defend for such insane person. 16 Am. & Eng. Enc. Law (2d Ed.) 601; Hurd's Rev. St. 1899, c. 86, § 13, p. 1132. Before such inquisition the rule which now obtains in both England and the United States is that a lunatic may sue in his own name by some proper person appointed or recognized by the court, as the next friend or guardian ad litem for the insane person.’ In Plympton v. Hall, 55 Minn. 22, 56 N. W. 351,21 L. R. A. 675, the doctrine was announced that, where persons are incapable of acting for themselves, as in the case of lunatics, they are entitled to the protection of the courts, and proceedings will be instituted under its direction. Suit may be brought in their name, and the court will authorize some suitable person to carry it on as next friend or guardian ad litem; and the power of the district courts to exercise such authority is not taken away by the provisions of the general statute authorizing the probate courts to appoint general guardians for insane persons. In Beall v. Smith, 9 Ch. App. 85, James, L. J., said: ‘The law of the court of chancery undoubtedly is that in certain cases, where there is a person of unsound mind, not found so by inquisition, and therefore capable of invoking the protecion of the court, that protection may in proper cases, and if and so far as may be necessary and proper, be invoked on his behalf by any person as his next friend.’ In Jones v. Lloyd, L. R. 18 Eq. 265, the plaintiff, who sued by a next friend, was a lunatic, but had not been so found by inquisition, and he sought to dissolve a partnership of which he was a...