Freyberg v. Pelerin

Lott, Justice. Motion granted, but without costs, as the question appears to be new under the Code. Although it would be competent to set up the infancy of the plaintiff by answer, in the nature of the old plea in abatement, I am of the opinion that the objection can be and is more properly taken by a motion like this. It was provided by the Revised Statutes (2 R. S., p. 446, §2,) that before any process should be issued, in the name of an infant who was sole plaintiff, a competent and responsible person should be appointed as the next friend of the infant in the suit, who should be responsible for the costs thereof. The Code has abolished the using of the term “next friend,” not in terms, but by providing in section 115 that when an infant is a party, he must appear by guardian appointed by the court in which the action is prosecuted, 204 or by a judge thereof, or a county judge; and the next section provides how the appointment shall be made. The guardian appointed for an infant plaintiff is made responsible by section 316 for the costs adjudged against the infant, and the payment thereof, and may be enforced by attachment. Although there is a change in the designation of the party by whom the infant is to prosecute the action, yet I am of the opinion that no proceeding can be regularly commenced without the appointment of some person to act for him; and it is proper that the defendant should not be obliged to limit his objection to an answer. He is entitled to be indemnified against costs, and ought to be permitted to avail himself of the objection by motion, on the ground of irregularity, as was decided under the old practice. (See Wilder agt. Ember, 12 Wend., 191; ex parte Scott, 1 Com., 33; since the Code, Hoftaling agt. Teal, 11 How. P. R., 188.)