Covell v. Porter

BROWN, J. This action was brought in justice court to recover for work and labor. Plaintiff had judgment before the justice, defendant appealed to the district court, where plaintiff again prevailed, and defendant appeals to this court. Plaintiff is an infant, and the action was commenced by a next friend appointed by the justice, under and pursuant to G. S. 1894, § 4972. The next friend so appointed continued to prosecute the action after the appeal to the district court, and defendant contends that this was reversible error. He insists that no proceedings in the action could be had in the district court until a guardian was appointed for plaintiff, under G. S. 1894, § 5160. We overlook the fact that the record wholly fails to show that the point was made in the court below, or that the attention of the court was called to it, and come directly to the merits, and announce our inability to concur in appellant’s contention. Section 5160 has reference solely to actions commenced in the district court, and cannot be made to apply to actions appealed from justice court by a most liberal construction. The appointment of a next friend by a justice of the peace, under section 4972, supra, clothes the person so appointed with authority to conduct the action to final judgment, and no change is made necessary, nor is his authority ended, by an appeal to the district court. Judgment affirmed.