Kilbourne v. Kilbourne

Gregory, J., delivered the opinion of the court. The appellant, who was the complainant in the court below, filed her hill against the defendant asking the court to annul the marriage which had taken place between them. Upon a hearing the chancellor denied her relief because of the insufficiency of the evidence. We are asked to review the decree. [88] It appears from the bill of complaint and the evidence that the complainant is under the age of twenty-one years and that the cause was instituted and prosecuted to final decree in the name of the infant instead of by her next friend. It is provided1 by Code, sec. 5331, that “any minor entitled to sue may do so by his next friend.” The failure to institute and prosecute the suit by a next friend casts substantial doubt on the validity of the decree. For that reason we are remanding the canse to the lower court with direction that the decree be vacated and the cause proceeded in by the next friend of the infant complainant to be assigned by the court should it be deemed advisable. Wilson & wife v. Smith, 22 Gratt. (63 Va.) 493; Garland v. Norfolk Nat. Bank, 156 Va. 653, 158 S. E. 888. Otherwise the cause should be dismissed by the trial court for the reason above stated. Reversed and remanded.