Fitzsimmons v. Fitzsimmons , 81 Mo. App. 604 ( 1899 )

BIGGS, J.

The defendant, John M. Fitzsimmons, is a minor. Suit was brought against him by the plaintiff for past maintenance. His guardian was also made a party. The plaintiff claims that John M. when an infant was delivered to her by his father to care for, with the understanding that she would be paid for the trouble and expense out of the property which the child would receive from the estate of his deceased mother. After the property of John M. had been received by his guardian, this action was instituted against him and the guardian before a justice of the peace. The justice dismissed the cause for want of jurisdiction, and on appeal the circuit court entered the same order, and the plaintiff has brought the case here for final determination.

The appellant has cited us to no case, and we know of none which holds that the appellant under the circumstances stated, may maintain an action at law against the defendant and his guardian. The decision of the Kansas City Court of Appeals in Paul v. Smith, 41 Mo. App. 275, seems to give countenance to such an action for necessaries furnished the minor when the latter is of sufficient age to absolve himself from the authority of his parent and does so without any necessity occasioned by the parents. If in the case at bar the facts are as claimed by the plaintiff, she will either have to apply to a court of equity for relief (Otte v. Becton, 55 Mo. 99), or to the probate court where the guardianship is pending (Guion v. Guion, 16 Mo. 52; State v. Martin, 18 Mo. App. 468). Either court would have the power, and should, if the facts are as claimed and the father is poor, order a reasonable allowance for the past maintenance of the child, provided the estate, after paying the allowance, was ample for his future maintenance and education.

The judgment of the circuit court will be affirmed.

All ■the judges concur; Bland in result only.