Plympton v. Hall

VandeRBURGh, J. In this case the plaintiff, an alleged lunatic, appears and sues by guardian ad litem. This appearance by guardian is under the sanction and direction of the court which appointed, as such guardian, on the proper application, a person represented to be the next friend of the lunatic. Persons incompetent to protect themselves, from age or weakness of mind, are entitled to come under the protection of the court, and proceedings will be instituted under its direction, as was done in this case. Malin v. Malin, 2 Johns. Ch. 238; Denny v. Denny, 8 Allen, 313. A lunatic is not supposed to be able, without the assistance of others, to know what steps may be necessary to protect his estate. Suits in his behalf are usually instituted in his name, but as he is a person incapable, in law, of taking any steps on his own .account, he sues by the committee of his estate, if any, or, if none, by his next friend, who- is responsible for the conduct of the suit. 1 Daniel, Ch. Pr. § 88; Story, Eq. PL § 66. In Beall v. Smith, L. E. 9 Ch. App. 91, the general rule in chancery is thus stated: Where there is a person of unsound mind, and therefore incapable of invoking the protection of the court, that protection may be invoked, in proper cases, and to the extent proper in his behalf, by any person, as his next friend. But' every person so constituting himself, officiously, the guardian of a person of unsound mind, does so at his own risk, and he must be [26] prepared to vindicate the propriety of the proceedings, if they are called in question. Nelson v. Duncombe, 9 Beav. 231; Light v. Light, 25 Beav. 248; Whetstone v. Whetstone, 75 Ala. 495. The remark of the trial judge in Halfhide v. Robinson, L. R. 9 Ch. App. 373, that a bill cannot be so filed by a next friend, is not sanctioned by other or later cases. In Jones v. Lloyd, L. R. 18 Eq. 275, it is said that everybody knows it takes some time to make a lunatic by inquisition, and his family sometimes hesitate about making him such. Is it to be tolerated that any one may injure him or his property without there being any person to restrain such injury? Rock v. Slade, 7 Dowl. 22. So, in some statutes of limitation, there is no saving clause in favor of lunatics, and in some cases prompt action may be required in instituting an action to save rights which might otherwise be lost. The rule can be no different in actions at law. Rock v. Slader supra. The appellant here concedes that the lunatic may sue, and 1 suppose whether resident or nonresident, but this necessarily implies that there must be some one to institute and manage the suit, as next friend or guardian. Again, it is suggested that there is no authority in this state for an appearance of any other guardian, for a lunatic than one appointed by the Probate Court, “who shall appear for and represent his ward in all legal proceedings unless another person is appointed for that purpose.” Laws 1889, ch. 46, § 148. This provision does not take away the power vested in the court to authorize a next friend to act as guardian ad litem for the purposes of a suit, but reserves and saves it. Under a statute substantially similar, in Massachusetts, where the Probate Courts have the exclusive jurisdiction to appoint guardians for the person and estate of lunatics, the Supreme Court sustains this view, and holds ■that the provisions of the statute do not limit the powers of the court in which an action is brought by or on behalf of a lunatic to appoint a guardian or next friend to appear in his behalf, and approves the doctrine as stated in Story, Eq. PL § 66: “Where persons are incapable of acting for themselves, the suit may be brought in their name, and the court will authorize some suitable [27] person to carry it on as tbeir next friend.” Gen. St. Mass. 1860, ch. 109, § 18; Denny v. Denny, 8 Allen, 313. (Opinion published 56 N. W. Rep. 351.) But in every sucb case it is in the discretion of the court to allow the suit to proceed or not, and it will order a stay of proceedings, or the suit to be discontinued, if it be deemed improper. Story, Eq. PL § 66. So, this suit, to recover real property here, was instituted by the guardian in this case under the direction of the court, and after the answer was served, in the exercise of its discretion, it ordered a stay of the proceedings to await the due appointment of a guardian by the Probate Court. In this there was no error. This court will hardly assume to question the good faith of the guardian, or the propriety of the action of the court in authorizing the institution of the suit by him. Order affirmed.