Sick v. Michigan Aid Ass'n

12 N.W. 905, 49 Mich. 50, 1882 Mich. LEXIS 486

• Court: Michigan Supreme Court
• Decided: June 27, 1882
• Status: Published

Opinion

Cooley, J".

The plea in abatement should not have been sustained in this ease.

The suit is on a peculiar contract of insurance of the life- and health of Frederick Sick, and is instituted in the name of his widow and minor children. If the infants alone had been the beneficiaries, a next friend must have been, appointed for them before instituting suit: Comp. L. § 6531; Wilder v. Ember 12 Wend. 191; but this is in ordeithat the defendant may have some one responsible to him for costs; and the statute has made no such requirement where the infants are joined with an adult plaintiff. Still there must be even in such cases some competent party representing on the record the interests of the infant plaintiffs, and the authorities seem to have recognized no exception to this rule, except the case of joint executors, some of whom are under age and others not. As the authority is joint in such a case the adult executors represent all: 1 Tidd. Pr. 99; 2 Saund. 212a, notes 1 and 5; Cro. Eliz.. 512; though if the suit were against the executors the-infants must appear by guardian : Frescobaldi v. Kinaston Strange 783 ; but it is not essential that a next Mend should) be appointed by the court itself; it is only necessary that the court should recognize his representative capacity and not dissent: Apthorp v. Backus Kirby 109; Judson Blanchard 3 Conn. 579; Stewart v. Crabbin’s Guardian 6 Munf. 280. And any proper person may present himself and be accepted for this purpose where no reason appears to the contrary. Stephenson v. Stephenson 3 Hayw. 123.

This case is peculiar. The mother — the father being-dead — sues in the joint right of herself and her minor children, naming them as co-plaintiffs with her. She does not designate herself as next friend, but she is the natural guardian of the children, and is really and manifestly proceeding as such. The appointment in such a case would be a mere formality, and the failure to make it would be cured by verdict. King v. King 37 Ga. 205. It is clear then that the 'suit should not have been abated. Presumptively it is a meritorious suit, and the court should have directed ¡an amendment instead of sending the infants ont of court for a defect so easily remedied. Young v. Young 3 N. H. 345.

But it is said the infant plaintiffs are not properly in ■court here; that they should have procured the appointment of next friend for the prosecution of the writ of error, ■or the adult plaintiff should have severed in its prosecution. It is too late to mate that objection at the hearing; it rshould have been taken on motion to dismiss.

The judgment must be reversed with • costs and the cause remanded.

The other Justices concurred.