Klaus v. State

Chalmers, J., delivered the opinion of the court. Two questions only are presented by the record. 1st, May a suit be prosecuted on behalf of an infant by one styling himself “next friend,” who has obtained no previous order of court admitting him to litigate in that capacity ? 2d, May a suit be maintained upon a guardian’s bond without a previous order by the proper chancellor? We answer both questions in the affirmative. [646] Code 1871, § 669, provides that, “ in any case where such persons as be within age may have cause of action, their next friend shall be admitted to sue for them, and such next friend shall be liable for the costs.” In Alabama, it is held that no formal leave of court in advance is required, Bethea v. McCall, 3 Ala. 449; Isaacs v. Boyd, 5 Porter, 383; and, in Connecticut, if the court permits the suit to continue, this will be equivalent to a formal order of allowance, Judson v. Blanchard, 3 Conn. 579. The doctrine is not universally so held; but we think this ruling most conformable to the established practice in this State, and best calculated to further the ends of justice. The prochein ami is an instrument of the court, subject at all times to its orders, who voluntarily makes himself liable for costs, for the purpose of giving the infant a standing in court. He may be changed by the court at pleasure, or required to give any bonds deemed necessary. He has no power to collect and receipt for the recovery obtained in the suit without special authorization. We think the fact that he is permitted by the court to carry on the litigation is itself an admission to sue under the statute. Code 1871, § 1207, provides that guardians’ bonds “ may be sued upon, by order of the proper chancellor, for any breach of the condition thereof, by the guardian whilst acting, or by the minor after attaining the age of majority.” Substantially the same provision has always existed as to administrators’ bonds; but it was said that the necessity for obtaining an order to put such a bond in suit was not universal, and that without such previous order a suit could be maintained against the sureties on the bond, upon a failure to pay over money found due in the hands of the administrator. Burrus v. Thomas, 13 S. & M. 459. The same rule, it was held in the same case, would apply to a guardian’s bond. As before remarked, the section of the Code above quoted substantially existed at that time, with reference to administrators’ bonds. The suit here is for an amount already found due by the former guardian. Judgment affirmed.