Shirley v. Bonham

5 W. Va. 501

• Court: West Virginia Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinion

Bericshire, P.

The only question properly reserved in this case, is that which arises on the demurrer to the declaration. The action is assumpsit by Bonham and wife, and B. F. Baley as the next friend of Mary C. Riley, infant heir of Edmund A. Riley, against the appellee.

The interest of the wife in the subject matter of the suit, is not averred or shown in the declaration. In the case of Hawver vs. Seibert and wife, 4 W. V. R., 586, this court held that as it was averred in the declaration that the bond upon which the suit by the husband and wife was founded, was executed to the wife, her interest in the suit was sufficiently shown, and the declaration was sustained.

As no such averment ,is made in the declaration in the present case, it is fatally defective for this reason. 1 Chitty’s Pl’g, p. 34. We *are also of opinion that the declaration is fatally defective in averring, as it does, the indebtedness of the defendant to the husband and wife, and to B. F. Balay as the next friend of the infant plaintiff. In a legal sense, he could not have such relation to the infant plaintiff, until the institution of the suit, and it follows that there could be no such indebtedness to him, as the next friend, prior to the institution of the suit, if indeed there could be afterwards. On account of the insufficiency of the declaration, the judgment must be- reversed with costs, and the cause remanded to the circuit court for further proceedings, with leave to the appellees to file an amended declaration, if they desire to do so.

The other judges concurred.

J UDUMENT REVERSED.