Greenman v. Cohee

61 Ind. 201

• Court: Indiana Supreme Court
• Decided: May 15, 1878
• Status: Published

Opinions

Perkins, J.

This cause is before us upon a second submission, a rehearing having been granted after the opinion rendered upon the first.

In deciding the cause upon the present submission, we adopt a part of the opinion delivered upon the former.

“ Suit brought by John W. Cohee, against the appellant, for an assault and battery and false imprisonment.

“Answer: 1. General denial.

“ 2. That Cohee is a minor and the suit was brought without a next friend.

“After answer filed, Samuel B. Cohee appeared as next friend, and filed the proper undertaking. This was allowed by the court over the objections and exceptions of the appellant.

“ Reply; trial by jury; verdict for appellee.

“ The usual motions, rulings and exceptions were then had, to present the questions of law and fact to this court. Appeal and assignment of errors.

“ The following points are made by the appellant:

“ 1. That, as the suit was commenced by a minor without a guardian or next friend, it was error to allow a next friend to appear for him afterward.

“ The statute is as follows:

. “ ‘ Sec. 11. Before any process shall be issued in the name of an infant, who is a sole plaintiff, a competent and responsible person shall consent in writing to appeal’, as the next friend of such infant, and such next friend shall be responsible for the costs of such action, and thereupon process shall issue as in other cases ; but where it shall appear to the court that such next friend is incompetent, or irresponsible, the court may remove him, and permit some suitable person to be substituted, without prejudice to the progress of the action.’ 2 R. S. 1876, p. 37.

“ There has been no authoritative construction of this section, we believe, upon the question presented in this case; but there have been cases decided under our statute of amendments, section 99 of the same act, 2 R. S. 1876, p. 82, which, we think, will conduct us to a proper decision in the present case.

“ It has been held, that a writ may be amended, and the return upon it; that the name of the coroner who made the service may be substituted for that of the sheriff; that the misnomer of a party may be corrected, or other parties substituted; a variance between the process and complaint may be amended; and that amendments in the process, return, complaint, answer, reply, or an exhibit, may be made at any time within the discretion of the court, where such an amendment will not substantially change the claims or defence. Beck v. Williams, 5 Blackf. 374; McKinney v. Harter, 7 Blackf. 385; Simcoke v. Frederick,,1 Ind. 54; Nimmon v. Worthington, 1 Ind. 376; Usher v. Cornwell, 3 Ind. 210; The State v. Bryant, 5 Ind. 192; The New Albany and Salem R. R. Co. v. Laiman, 8 Ind. 212; Riley v. Murray, 8 Ind. 354; Hubler v. Pullen, 9 Ind. 273; Harvey v. Myer, 9 Ind. 391; Jackson v. The Ohio and Mississippi R. R. Co., 15 Ind. 192; Haines v. Bottorff, 17 Ind. 348; Woodward v. Wous, 18 Ind. 296; Abshire v. Mather, 27 Ind. 381; The Evansville and Crawfordsville R. R. Co. v. Lawrence, 29 Ind. 622; Barnes v. Bell, 39 Ind. 328; Ferguson v. Ramsey, 41 Ind. 511; Hedrick v. Hedrick, 55 Ind. 78.

“ The section we are considering is directory ; the second clause strengthens us in this view. Between substituting one next friend for another after the suit is brought, and admitting a next friend after suit is brought, when there was none at first, there is no substantial difference; and, if a new party may be introduced after the commencement of the suit, we do not see why a new next friend may not be. Admitting a next friend after the suit is commenced does not affect either the claim or defence.

“Although amongst the eases cited, supra, there is no one directly in point, yet their general course would meet the case we are considering, and uphold the ruling of the court below.”

2. Thatthe court gave erroneous instructions to the jury.

The instructions said to have been given by the court, and claimed to have been erroneous, are not properly in the record.

3. That the verdict was unsustained by the evidence.

We are of a different opinion.

4. That the damages were excessive.

We can not so decide. A young man was arrested, and thrown into prison, upon an unverified charge of having committed a felony, without a warrant, and afterward released by order of the person who caused his arrest, no judicial investigation being had.

5. In this court the objection is raised for the first time, so far as appears, that this suit for damages was prosecuted by the attorney for the appellee under a champertóus contract.

In addition to the fact that it does not appear by the record that the objection was made in the court below, we may state, that it does appear that the contract under which said attorney prosecuted the suit was in writing; that the parties to it were in court; yet it does not appear that the contract was given in evidence, or its production called for, that it might be so given.

It is said by counsel, in their brief for the appellee, that the contract was produced and submitted to the court, who decided that it was not champertous, and, hence, that no further notice was taken of it in the progress of the cause.

This statement may be true, but it is not shown to be so by the record. It was for the court to give a construction to the written contract, by which construction, when given, the jury would have been bound. Beatty v. Gates, 4 Ind. 154, and cases cited.

Besides, this is not a matter of which a third party could take advantage. The question could only arise in a suit upon the agreement. See Scobey v. Ross, 13 Ind. 117.

"We discover no available error in the record.

The judgment is affirmed, with costs.