Bull v. Dagenhard

Simrall, C. J., delivered the opinion of the court. This action of ejectment was brought by J. H. Mullen, the guardian of the infants Mary L. Boss and Louisa E. Boss. Mullen’s death was suggested, and motion made by J. H. Bull for leave to continue the suit in his name, he having-been appointed guardian, the successor of Mullen. The application was refused, and the suit was dismissed. We construe the agreement of counsel as submitting to the court the effect of the death of Mullen on this litigation’, and the rights of Bull to be admitted to prosecute the suit. The court was of opinion (we infer) that Mullen could not sue in ejectment as guardian, before his letters were taken out, and, therefore, to allow Bull to continue its prosecution would result in no good, because his recovery was dependent on the right of his predecessor at the time the writ was sued out. The plaintiff in error insists that although the suit may have been prematurely brought by Mullen, yet, his appointment as guardian having been made before the return-term of the writ, the fault objected to has been cured ; but if mistaken in that, the only mode in which the exception could be raised was by plea in abatement, which was waived by the pleas of the defendants to the merits. [605] A guardian does not sustain the same relation to the ward that the administrator does to those interested in the estate. The guardian has no title to the property of his ward, real or personal. Whatever he does in respect of the property is in right of his relation to the ward. He is clothed with powers ■over the person and property, as legal agent, so far as .may be needful to the performance of his duties. Whenever he asserts title as guardian, it is the title of his ward. A guardian ad litem, whose function is limited to the particular suit, answers for the infant — or, rather, it is the answer of the infant by him. The disability of an infant to sue grows out of his incapacity. He cannot constitute an attorney. The prochein ami who sues on behalf of, and in the name of, an infant ■derives no authority from him, but is accepted by the court as a fit pei'son to prosecute the infant’s right in that suit. Regularly, the prochein ami ought to be allowed by the court to institute the suit. But there has been such relaxation in the practice in this and some other states that such recital in the declaration, or the entertainment of the suit by the court, will be such recognition of the character which he has assumed as will be equivalent to a previous permission. Klaus v. The State, use, etc., 54 Miss. 644. He is subject to the control of the court as its appointee or officer, and may be removed or displaced at its pleasure. Substantially, the suit was by the infants, and to redress their wrongs — the same as if brought by an adult. For all legal pui’poses the infants were the plaintiffs, seeking to recover land withheld from them. The person who conducts the litigation in their behalf is amenable personally for costs. In this form infants may bring, it seems, any of the forms of action — as, for use and occupation of land (Porter v. Bluler, 17 Barb. 149), or ejectment (16 Mee. & W. 778; Tyler on Inf. 149). Such is the provision of the Code, section 669 : * ‘ In any case where such persons as be within age may [606] have cause of action, their next friend shall be admitted to sue for them ; and such next friend shall be liable for costs.” When Bull applied to be “ admitted ’ ’ to continue the suit,, the real question was this : The action having been originally brought on behalf of the infants, ought Bull to be allowed to continue the prosecution of the “cause of action” of the-infants set up in the suit, to wit, the recovery of the possession of the lands? We think that the court ought to have granted his request, and, as a recovery might have been embarrassed by the form of the declaration filed by Mullen, Bull ought to have been directed to amend the declaration so as-that it would appear that these minors sued by him as their guardian and next friend, and thereby have disembarrassed the pleading from the technical point that Mullen sued as-guardian before his appointment. But Bull ought to have been required to pay the costs up to the date-of his application. Judgment of dismissal reversed, and cause remanded to be proceeded in as herein directed.