Anderson v. Watson , 3 Met. 509 ( 1861 )

JUDGE BULLITT

delivered the opinion of the court.'

The only question in this case is, whether or not a guardian can sue in his own name for personal property of his ward which, as alleged, is in the possession of the defendant without right, and is unlawfully detained by him.

It is contended that this suit by the guardian is authorized by the 33d section of the Code, which declares that an executor, guardian, or other fiduciary therein mentioned, “may bring an action without joining with him the person for whose benefit it is prosecuted.”

Said section does not declare what actions the guardian may bring. It does not authorize him to bring any action. It only authorizes him to sue without joining the ward with him in cases wherein he has the right to sue in his own name. Thus, the guardian can, and could before the Code, sue in his own name upon a note taken by him for money of the ward. Under the 30í/¿ section of the Code, declaring that “every action must be prosecuted in the name of the real party in intei’est, except as provided in section 33,” it might have been necessary to sue in the infant’s name upon such a note, but for the provision in section 33, relating to guardians. In our opinion the effect of section 33, so far as it relates to guardians, is to enable them to sue as they could have done before the Code, without joining their wards in the action.

Before the Code, such a suit as the one under consideration must have been brought in the name of the infant by his next friend. Now it may be brought by his guardian or next friend. {Code, section 53.) But it must be brought in the infant’s name.

The judgment is affirmed.