Foster v. Ewing

Court of Appeals of Kentucky

Foster v. Ewing

7 Ky. Op. 503, 1874 Ky. LEXIS 173

DecidedFebruary 13, 1874

StatusPublished

This text of 7 Ky. Op. 503 (Foster v. Ewing) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foster v. Ewing, 7 Ky. Op. 503, 1874 Ky. LEXIS 173 (Ky. Ct. App. 1874).

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Opinion

Opinion by

Judge Lindsay :

The answer of G. W. Foster presented a good defense h> the action of Ewing, so far as further proceedings at law were concerned. The amended petition by which the infant, James King, was attempted to be made a party plaintiff, did not remove the difficulty. It may well be doubted whether under the circumstances the court should have allowed the infant to be made a party without service of process upon him, as a defendant, or in case he appeared as plaintiff, without ascertaining whether or not he was actually apprised of the use that was being made of his name, and desired that the action should be prosecuted for his benefit.

It is certain, however, that he ought not to be permitted, under any circumstances, to make himself a party to the action and join in a pledge for a judgment which, if upheld as against him, would operate to his injury. By the amended petition King is made to unite in the prayer of the original petition, that is, that Ewing shall have judgment for his debt and that his (King’s) rights' shall be utterly disregarded.

Whilst infants are bound 'by actions prosecuted for their own benefit, by a next friend, we are aware of no case in which they have been held bound when the action is not intended for their benefit, and where they are made plaintiffs only for the purpose of defeating their rights. King is not bound by the judgment herein ren[504]*504dered, and hence' the liability of G. W. Foster to him' will not be released by its payment. Said judgment must, therefore, be reversed. Upon the return of the cause Ewing should be allowed to' have it transferred to equity, and to take the proper steps to release Foster from liability on the administrator’s judgment. If he fails to do so within reasonable time, his petition should be dismissed without prejudice. As the pleadings now stand, King’s name should be stricken from the case.

Brock, for appellant. Ap per son, Reid, for appellee.

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Opinion by

Judge Lindsay :

The answer of G. W. Foster presented a good defense h> the action of Ewing, so far as further proceedings at law were concerned. The amended petition by which the infant, James King, was attempted to be made a party plaintiff, did not remove the difficulty. It may well be doubted whether under the circumstances the court should have allowed the infant to be made a party without service of process upon him, as a defendant, or in case he appeared as plaintiff, without ascertaining whether or not he was actually apprised of the use that was being made of his name, and desired that the action should be prosecuted for his benefit.

It is certain, however, that he ought not to be permitted, under any circumstances, to make himself a party to the action and join in a pledge for a judgment which, if upheld as against him, would operate to his injury. By the amended petition King is made to unite in the prayer of the original petition, that is, that Ewing shall have judgment for his debt and that his (King’s) rights' shall be utterly disregarded.

Whilst infants are bound 'by actions prosecuted for their own benefit, by a next friend, we are aware of no case in which they have been held bound when the action is not intended for their benefit, and where they are made plaintiffs only for the purpose of defeating their rights. King is not bound by the judgment herein ren[504]*504dered, and hence' the liability of G. W. Foster to him' will not be released by its payment. Said judgment must, therefore, be reversed. Upon the return of the cause Ewing should be allowed to' have it transferred to equity, and to take the proper steps to release Foster from liability on the administrator’s judgment. If he fails to do so within reasonable time, his petition should be dismissed without prejudice. As the pleadings now stand, King’s name should be stricken from the case.

Brock, for appellant. Ap per son, Reid, for appellee.

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Bluebook (online)

7 Ky. Op. 503, 1874 Ky. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-ewing-kyctapp-1874.