Workman v. Ash

4 Ind. 74

• Court: Indiana Supreme Court
• Decided: May 24, 1853
• Status: Published

Opinion

Davison, J.

Trespass by the defendant in error against the plaintiff in error. Plea, not guilty. Verdict and judgment for the plaintiff below.

The commencement of the declaration is as follows: “ George Ash, (an infant under the age of twenty-one years, by his next friend, Littleton Ash,) complains of George W. Wortman, defendant, in a plea of trespass,” &c.

The plaintiff objects to the declaration, because it does not show that the next friend therein named was admitted by the Court; nor does it show that he filed his consent to act as such, agreeably to the statute. See R. S. 1843, p. 679, ss. 58, 59, 60.

This objection was not presented to the Court below ; and it seems to us, that it is one that should have been made at the earliest stage of the proceedings. We are referred to Shirley v. Hagar, 3 Blackf. 225. In that case it was held that a declaration stating that the plaintiff sues by prochein amy, without showing the plaintiff’s infancy and the prochein amy’s admission, was bad on general demurrer.

J. Ryman, for the plaintiff. S. S. Harding, for the defendant.

In the present case, the plaintiff failed to demur to the declaration. His objection to it is first raised in this Court. We are of opinion that the defect complained of must, after verdict, be considered as waived. Usher v. Cornwell, 3 Ind. R. 210.

Per Curiam.

The judgment is affirmed, with 2 per cent, damages and costs.