Carlton v. Morgan

Whitfield, J. An action of assumpsit was brought by W. EL Simmons, as guardian for Russell Carlton, against C. C. Morgan. A demurrer to the declaration was filed, one of the grounds of the demurrer being that “the said suit should be brought in the name of Russell Carlton, and not W. EE. Simmons, if Carlton is the proper party.” An amended declaration was filed making the party plaintiff “Russell Carlton by W. H. Simmons his next friend.” Appropriate amendments of the process were made. A plea of never was indebted was filed. There was positive evidence that the indebtedness of the defendant was the property of the plaintiff, a minor, and that the minor’s next friénd in this action is the minor’s guardian. The court on motion of the defendant directed a verdict for the defendant on the ground “that the plaintiff has not proven his title to the fund in the controversy.” This was error. Even if the defendant is not estopped, in challenging by demurrer the right of the guardian to maintain the action, from contesting the right of the plaintiff to maintain the action in his own name by next friend, the minor is the real party in interest, suing by next friend, who is his guardian, and the guardian may collect a judgment obtained in the name of the ward. The judgment is reversed. ■ Shackleford, C. J., and Taylor, Cockrell and Hocker, J. J., concur. ;