Cain v. Devitt

Stockton, J. To insure a trial in the district court upon appeal, on the same cause of action that was tried before the justice, the law requires that the justice shall file in the office of the clerk of the district court, all the original papers relating to the suit, with a transcript of the entries on his docket. Code, section 2336. Because the bill of particulars was not marked “ filed,” by the justice, the defendant objected to the same being read to the jury, and the objection was sustained by the court. When the plaintiff then attempted to introduce evidence to prove an indebtedness to her from the defendant, the latter objected to any evidence being given to the jury, on the ground that there wTas no bill of particulars on file, nor anything in the record, to show on what cause of action the suit was brought. This objection was overruled, and we think rightly. The original notice sufficiently stated the plaintiff’s cause of action, and there was no error in permitting the plaintiff, in the absence of a bill of particulars, to give evidence under it to show an indebtedness to her from defendant, for the work of her son, Anthony. [120] The more important question in the cause arises under the instructions of the court, as to the right of the mother to recover for the services of her minor son. The plaintiff is a widow, and brought this suit to recover for the work and labor of her son, under the age of twenty-one years. The testimony does not show that the son resided with the mother, or received his support and maintenance from her. It shows, however, sufficiently that the son, who was nineteen years of age at the time, was subject to the control of his mother, and obeyed her directions as to when, and with whom, he should labor. The court refused to charge the jury, as requested by defendant, that the mother, on the death of the father, is not entitled to recover for the earnings of her minor child, and cannot maintain an action therefor in her own name.” In the absence of statutory regulation, the right of the father to the earnings of his minor children results from his obligation to support them. The right and the obligation go together. The authorities are not uniform upon the question whether this right and obligation devolve upon the mother, at the father’s death. The weight of authority would seem to indicate, that at common law, they do not. 1 Parson’s Contracts, 259, note. By our statute, the father is made the natural guardian of the person of his minor child ; in case of his death, the mother, unless in case of some disqualification, becomes such guardian. Code, sec. 1491,1492. Our laws makes the distinction of .guardians of the person, and guardians of the property of minors. Where a minor has property not derived from the parents, the county court is required to appoint a guardian to manage said property. And such guardian is required to give bond and security to the approval of the court. The guardian of the person of the minor is not required to give such bond; and whether appointed by the will of the natural guardian, or, in the absence of such will, by the county court, such guardian has the same power and control over the person of the minor, that the parents would have, if living. Code, section 1498. [121] "We tliink it results conclusively from these provisions of the Code, that the mother, as the natural guardian of the person of the minor son, where the father is dead, is entitled to recover for his services. Exceptions may exist to this rule, but they are to be determined by the circumstances of each case. "Where the son does not- live with the mother, or where she does not exercise her right to control him, the son may be entitled to receive, himself, the wages of his labm; and the consent of the mother, in such case, may be inferred from slight circumstances. Gale v. Parrot, 1 N. H., 28. An agreement by the father, to relinquish to the child the right he would otherwise have to his services, and to receive his wages, may be inferred from the circumstances of his leaving him to manage his own affairs, and make and execute his own contracts, for a considerable time. Jenny v. Alden, 12 Mass., 375; Conover v. Cooper, 3 Barb., 115. There is nothing in this case, to indicate that it should not be governed by the general rule. The objection made to a portion of the testimony, that it showed a partnership between the minor son and one Logan, in the work of “ breaking prairie ” for the defendant, we think, was properly overruled. The evidence does not necessarily prove any such partnership, and it is not, therefore, necessary for us to decide what would have been the plaintiff’s rights in the premises, had such fact been shown. Yfe may say further, in conclusion, that some of the instructions asked by the defendant, and refused by the court, seem to us proper enough to have been given in a case where they were relevant to the facts proved. There is nothing, however, in the testimony to justify the defendant in the assumption on which the instructions asked and refused, are predicated — that the minor son was the real party in interest — that he contracted to do the work for the defendant on his own account — or that he was not living with his mother, and maintained by her, partly at least, from the proceeds of [122] bis labor. The instructions asked, therefore, were properly refused. Judgment affirmed.