Abbott Ex Rel. Abbott v. Hancock

31 S.E. 268, 123 N.C. 99, 1898 N.C. LEXIS 22

Opinion

Clark, J.:

If the wife were suing here in her own right as a free-trader because of the insanity of her husband, it would be necessary that he should have been declared insane {Code, Section 1831) but the right of action for the seduction of the infant daughter is in the father (if living). Scarlett v. Norwood, 115 N. C., 284; Hood v. Sudderth, 111 N. C., 215. The allegation of the insanity of the husband is admitted by the demurrer’, and an insane person can sue by his next friend though there has been no inquisition of lunacy. Code, Section 180; Smith v. Smith, 100 N. C., 498. We know of no reason, nor authority, why the wife cannot be his next friend for the purpose of bringing such action in his behalf. She was regularly appointed next friend bv the Clerk of the Superior Court in the mode prescribed by Rule 10 of Superior Court (119 N. (J., 903) and that appointment cannot be impeached collaterally by demurrer. Sumner v. Sessoms, 94 N. C., 371. JSIor do we see that the propriety or fitness of the appointment of a next friend can in any way concern the defendant in the action. The next friend is an officer of the Court and subject to removal by its order at any time. Tate v. Mott, 96 N. C., 19.

It is averred in the complaint and admitted by the demurrer that the father is living ont of the State. In Gould v. Erskine, 20 Ont., 347, it is held that at common law, in such case, the mother is entitled to maintain the action in lieu of the father. As this action is brought by the mother, individually, as well as by her, as next friend of her husband, qua cunque via, the proper plaintiff is before the Court. For superfluous parties plaintiff, a demurrer does not lie. Sullivan v. Field, 118 N. C., 358; Tate v. Douglas, 113 N. C., 190; Wool v. Edenton, Ibid, 33.

No error.