Stewart v. Sims

• Decision Date: 27 February 1904
• Citation: 79 S.W. 385
• Parties: STEWART v. SIMS et al.
• Court: Tennessee Supreme Court

Page 385

79 S.W. 385

STEWART v.SIMS et al.

Supreme Court of Tennessee.

February 27, 1904.

Appeal from Chancery Court, White County; W. T. Smith, Special Judge.

Bill by W. H. Broyles, a minor, by William Stewart, guardian, against Eli Sims and others.From a decree of the Court of Chancery Appeals reversing a decree in plaintiff's favor, he appeals.Reversed.

F. T. Fancher, for appellant.H. C. Snodgrass and Jarvis & Hill, for appellees.

BEARD, C. J.

The defendantEli Sims was appointed and qualified as guardian of the minor complainant, Wade H. Broyles, in 1889, executing a bond for the faithful discharge of his duties, with his codefendants as sureties.After holding the office for several months, he was removed by the county court of White county, and required to make a settlement of his guardian account.At the same time one Meredith was appointed as his successor in office, and he acted as guardian until a year or two before the filing of the present bill, when he died.The complainant, Wm. Stewart, was duly appointed to succeed him, and was the guardian of the minor, Broyles, when the present bill was filed.At the time of his removal the defendant Sims had in his possession a considerable sum of money and other property belonging to his ward, which he has failed to account for to the present time.The bill in this case is styled, "The bill of complaint of W. H. Broyles a minor," etc., "by his regular guardian," etc., and was filed to hold him and the sureties upon his guardian bond liable for his failure to account for the money and the property so held by him.The only defense made to the bill was the statute of limitations of 10 years and that of 6 years.The chancellor, upon the hearing of the cause, overruled that plea and decree that W. H. Broyles, by his guardian, W. L. Stewart, as guardian and next friend, receiver, etc., and an order of reference was moved to ascertain what was due to him.The Court of Chancery Appeals reversed this decree upon the ground that it is in substance a suit by the guardian, and when brought was barred by the statutes of limitations.

We think that the Court of Chancery Appeals was in error in this holding.As already stated, the bill was filed by the minor by his guardian, and relief is given to him as such.It is in form and spirit the minor's suit, and the real question is, can an infant maintain such an action?While it is true that by section 4272 of Shannon's Code the guardian is entitled to the possession of the goods and chattels and other personal estate of his ward, as well as the profits of his lands and tenements, and under section 4273he is authorized to bring such suits or actions in relation there as he may deem necessary, we do not understand that the minor is precluded in a proper case from instituting a suit with regard to his property in his own name through his guardian, who thus becomes for the time being his prochein ami, or next friend.It has been held that an infant may sue by his next friend, notwithstanding he had a guardian, if the guardian does not dissent.Thomas v. Dike, 11 Vt. 273, 34 Am. Dec. 690.In Bradley v. Amidon, 10 Paige, 235, it was held that, although the general guardian of an infant was the legal custodian of his ward's property, yet he could not file a bill to obtain possession of such property in his own name, but he must file it in the name of the infant as next friend; and in Simpson v. Alexander, 6 Cold. 619, this rule of practice was recognized, though not settled, by this court.Mr. Daniel, in his Chancery Practice (1st vol., star page 69), uses this language: "Although an infant has had a guardian assigned him by the court or appointed by will, yet where the infant is plaintiff the course is not to call the guardian by that name, but to call him a next friend."To the same effect will be found the cases of Segelken v. Meyer, 94 N. Y. 479;Sanderson v. Sanderson's Adm'rs, 17 Fla. 829;Downes v. Friel, 57 Md. 531.

In Simpson v. King, 1st vol.Equity, 11, it was held that a suit in equity for a legacy should be brought in the name of the infant, and not that of the guardian, though payment upon recovery could only legally be made to the latter.And so in the present case, while the recovery made here will be at the instance of and for the benefit of the minor, yet the...