Gustafison v. Ericksdotter , 37 Kan. 670 ( 1887 )

Opinion by

Clogston, C.:

The only question is, did the court err in sustaining the demurrer to the defendant’s answer ? This question brings up the inquiry, can a person of unsound mind bring an action without a guardian or next friend being joined as plaintiff? We think not. Our statutes provide who shall prosecute and defend actions for and against persons of unsound mind. Section 18, ch. 60, Compiled Laws of 1885, is as follows:

“ It shall be the duty of every such guardian to prosecute and defend all actions instituted in behalf of or against his ward, to collect all debts due or becoming due to his ward, and give acquittances or discharges therefor, and to adjust, settle and pay all demands due or becoming due from his ward, so far as his effects and estate will extend, as hereinafter provided.”

The defendant’s answer clearly raises the question of insanity, and the demurrer of the plaintiff admits the allegations to be true. Plaintiff, then, being admitted to be a person of unsound mind, has no capacity to bring this action; and what she cannot in person do, she cannot direct or employ an attorney to do for her. The court erred in sustaining the demurrer.

It is therefore recommended that the cause be reversed, and remanded with the order that the court overrule said demurrer.

By the Court:' It is so ordered.

All the Justices concurring.