Kirby v. Gilliam

• Court: Virginia Supreme Court
• Writing for the Court: EGGLESTON, Justice
• Citation: Kirby v. Gilliam, 182 Va. 111, 28 S.E.2d 40 (1943)
• Decision Date: 06 December 1943
• Parties: KIRBY. v. GILLIAM.

182 Va. 111

28 S.E.2d 40

KIRBY.

v.GILLIAM.

Supreme Court of Appeals of Virginia.

Dec. 6, 1943.

GREGORY, J., dissenting.

Appeal from Circuit Court of City of Newport News; John Weymouth, Judge.

Suit by Maude Kirby, in her own right and as next friend of Lois May Kirby Gilliam, an infant, against Junious L. Gilliam to annul the marriage of the infant to the defendant. Defendant and infant each filed a cross-bill. From a decree overruling plaintiff's motion to strike the defendant's plea, sustaining defendant's demurrer, and dismissing the bill, plaintiff appeals.

Affirmed.

Before CAMPBELL, C. J., and HUD-GINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

R. T. Armistead and Charles C. Berkeley, both of Newport News, for appellant. No appearance for appellee.

EGGLESTON, Justice.

Maude Kirby, who is characterized in the process as suing "in her own right and as next friend of Lois May Kirby Gilliam, an infant, " filed her bill of complaint in the court below against Junious L. Gilliam. The bill alleged that the plaintiff is the mother of Lois May Kirby Gilliam, who is an infant fourteen years of age, and for whom the plaintiff had theretofore maintained a home in James City county, Virginia; that on November 28, 1942, Junious L. Gilliam, an adult, unlawfully and illegally took the infant child from the custody of the plaintiff and carried her to South Mills, North Carolina, where through fraud and false misrepresentation, and in an effort to circumvent the laws of the State of Virginia, he procured a license to marry her; that while the infant, Lois May Kirby Gilliam, and Junious L. Gilliam had gone through a marriage ceremony, the "marriage or purported marriage" was "voidable" under the laws of the State of North Carolina, and was contrary to the laws of the State of Virginia, against its public policy, and "void" in the latter State; that immediately after the marriage ceremony the parties had returned to Newport News, Virginia, where they are now living as man and wife; that by reason of her tender years the infant, Lois May Kirby Gilliam, was not capable of contracting a valid marriage; and that it was "contrary to public morals and common decency that said parties be allowed to continue to cohabit as man and wife."

The prayer of the bill was that Junious L. Gilliam be made a party defendant to the bill; that "the marriage or purported marriage" be annulled and dissolved; that the custody of the infant child be restored to the plaintiff; and that the defendant be enjoined and restrained from in any way molesting or communicating with her. The bill is signed, "Maude Kirby, " and is sworn to by her before a notary public.

The defendant demurred to the bill on the grounds, among others, that the marriage was not void but was valid under the laws of both North Carolina and Virginia; that even if the marriage be voidable, it could be annulled only at the instance and request of the infant wife, and could not be annulled at the instance of the plaintiff, Maude Kirby, either in the latter's own right or as next friend of the infant wife; that the plaintiff had no legal status in her own right to seek an annulment of the marriage, nor could she "constitute herself" the next friend of the infant wife and seek an annulment of the marriage without the latter's consent; and that the wife had been emancipated by her marriage from the custody and control of her mother, the plaintiff.

The defendant also filed a plea which in substance repeated the main legal defenses asserted in the demurrer, and in addition thereto alleged that the infant wife wished the marriage to continue and that the suit had been brought without her consent and against her "will."

There was an answer and cross-bill filed by Junious L. Gilliam and the infant wife, which, however, does not appear in the printed record.

After a hearing of the matter upon the pleadings the court entered a decree overruling the plaintiff's motion to strike the defendant's plea, sustaining the demurrer and dismissing the bill. From this decree the plaintiff has appealed.

The petition for appeal states that: "The sole question involved in this appeal is whether the respondent in a suit to annul the marriage of a female child 14 years of age, which suit is brought by her mother both in her own right and as next friend of the infant, can defeat the suit by pleading that it is brought without the consent and against the will of the infant child."

Both in their brief and in the oral argument before us, appellant's counsel, without discussing the subject, have assumed that the present suit is that of the infant wife, suing by her mother as her next friend, in proper form, for the annulment of the marriage, and that the fundamental question involved is whether such a suit can be maintained without the consent and against the will of the infant.

As we see it, the record presents these questions: (1) Who is the real plaintiff in the present suit, the infant or the mother? Is this a suit by the infant, suing by her mother as her next friend, or is it a suit by the mother? (2) If the mother is the real plaintiff in the present proceeding, can she maintain, in her own right, a suit for the annulment of the marriage and for the custody of her infant daughter against the wish of the daughter and so long as the latter desires that the marriage relationship be continued?

In this State an infant wife cannot bring a suit in her own name to annul her marriage. Under Code, § 5331, she must sue for this purpose by her next friend. Kilbourne v. Kilbourne, 165 Va. 87, 88, 181 S.E. 351, 352.

In Lile's Notes to Minor's Institutes, p. 276, that distinguished author says: "In some of the states the prochein ami is appointed by the court, but in Virginia, and probably in most of the states, the practice is for the father, or other near relative, to act in that capacity, without a formal appointment; his being named as next friend in the bill or declaration, and the suit proceeding without objection, is a tacit recognition of him as such by the court." See, also, Jackson v. Counts, 106 Va. 7, 11, 54 S.E. 870.

And continuing, Mr. Lile, in the same work (at page 277), says: "It seems that the consent of the infant is not necessary to authorize a suit on his behalf by the prochein ami, but that any person (even a stranger) may file a bill on behalf of an infant, and even against the latter's will; upon objection made, the court will order an inquiry by a master to ascertain whether the suit is for the infant's benefit or not, and whether some other person is best entitled to act as prochein ami, and upon the coming in of the report, the court will make such order as seems, on the whole, best for the interests of the infant."

In Fulton v. Rosevelt, 1 Paige, N.Y., 178, 19 Am.Dec. 409, 410, cited by Mr. Lile, it is said: "It is not necessary for the person prosecuting a suit in the name of infants, to show that the same was commenced with their knowledge or consent. Any person may bring a suit in their name, as their next friend, because he does it at his peril. * * * The only check upon this general license is, that on a proper application the court will refer it to a master to inquire whether such suit is for the benefit of the infants; and if the master reports that it is not for their benefit, or that it is not for their interest that it should be prosecuted by the particular person who has instituted the suit, the court will order the proceedings to be stayed (citing authorities)."

See, also, 27 Am.Jur., Infants, § 118, p. 839; Swope v. Swope, 173 Ala. 157, 163, 164, 55 So. 418, Ann.Cas.l914A, 937; Wilson v. Smith, 22 Grat. 493, 504, 505, 63 Va. 493, 504, 505; Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58, 59, 118 A.L.R. 398.

But it is well settled that such an infant's suit must be brought in his name and not in that of the next friend--that is, the infant and not the next friend must be the real party plaintiff.

As is said by Mr. Lile in his Notes to Minor's Institutes, p. 277; "It is important to observe, that although the suit is conducted by the prochein ami, it must be in the name of the infant and not in the name of the prochein ami. The proper form is 'A. B. an infant under the age of twenty-one years, who sues by C. D. his father (or other person, as the case may be) and next friend.' If the suit be brought in the name of the next friend, so as to make it his suit, and not the infant's--as 'C. D. father and next friend of A. B. an infant'--the error is fatal." See, also, 4 Minor's Institutes, 1st Ed., p. 1363.

"This means that the suit must be the infant's suit, and not that of the next friend. If in the name of the next friend 'on behalf of the infant' it cannot be maintained. No party, infant or adult, may sue by deputy." Lile's Equity Pleading and Practice, p. S3, note 21. See, also, Morgan v. Potter, 157 U.S. 195, 198, 15 S.Ct. 590, 39 LEd. 670; 27 Am.Jur., Infants, § 118, p. 838; 31 C. J., Infants, § 260, pp. 1117, 1118.

This subject was recently before the West Virginia court in Ebbert v. West-fall, 123 W.Va. 690, 17 S.E.2d 787, 788. It was there held that a suit by "Mable Ebbert, next friend and guardian for the purposes of this suit of" certain infants, was a suit by Mable Ebbert and could not be maintained as one by the infants. Among the cases there relied on was Lemon, Guardian, v. Hansbarger, 6 Grat. 301, 302, 303, 47 Va. 301, 302, 303, in which we held that a suit by an infant against his former guardian for an accounting must be filed in the name of the infant by his next friend and not in the name of the present guardian acting for and on behalf of the infant. To the same effect, see Sillings v. Bumgardner, Guardian, 9 Grat. 273, 275, 50 Va. 273, 275, also cited by the West Virginia court.

Tested by these principles, it is clear that the plaintiff in the present suit is Maude Kirby and not the infant daughter. The process does not run in the name of "Lois May Kirby Gilliam, an infant,...