Stanley v. Stanley , 123 Ga. 122 ( 1905 )

Evans, J.

(After stating the facts.) Irrespective of the question whether or not the petition as finally amended set forth a state of facts showing that Stanley was entitled to have the judgment rendered against him in the suit for alimony set aside, the judgment of the trial, court dismissing the action should be affirmed, for the reason that no offer was made to meet the objection, raised by one of the special demurrers filed by the defendants, that neither the original petition nor any of the amendments thereto disclosed that Mrs. Nancy Rusk had any authority to act for Stanley .as next friend in bringing the suit, nor did it appear that he had no guardian, nor was any reason alleged why he did not sue by guardian. This objection was well taken, and presumably an appropriate amendment would have been made to overcome it, if the fact was that Mrs. Rusk could legally maintain the action in her capacity as next friend for Stanley, whom she alleged to be her father. In the case of Reese v. Reese, 89 Ga. 645, the question arose whether or not, under any circumstances, a suit could be brought in behalf of one non compos mentis by any one save a duly appointed guardian, and this court decided, in view of the provisions of the Civil Code, § 4843, and the generally recognized rule obtaining in other jurisdictions, that where no guardian has been legally appointed to represent an insane person, the courts, whether of .law or of equity, have jurisdiction to entertain suits brought by one as -next friend of the insane person. This decision was approved and followed in Dent v. Merriam, 113 Ga. 83; and in LaGrange Mills v. Kener, 121 Ga. 429, it was held that “A suit by a next friend for a lunatic, who has been adjudged insane, which fails to allege that the lunatic has no guardian, or any sufficient reason why she does not appear by her guardian if she has one, is maintainable, unless the failure to make allegations of this character is made ground of objection in a special demurrer, or by plea in abatement.” In the latter case the demurrer did not raise the proper objection to the maintenance of the action; so the judgment overruling the demurrer was affirmed. As was clearly intimated, however, the objection, if raised, would have been cause for dismissing the action, unless met by appropriate amendment. See Nance v. Stockburger, 112 Ga. 90.

Where one can not, except under' special circumstances, maintain a suit in his own behalf or for the benefit of another, it is incumbent upon him to disclose the facts giving him a right to bring the action. Thus, before the heirs at law of an intestate can recover land belonging to his estate, they must allege and prove either that there was no administration upon the estate or that the administrator, if there be one, has assented to their bringing thé suit (Greenfield v. McIntyre, 112 Ga. 691); and if they fail to make the necessary allegations as to their right to sue, the omission to do so may be taken advantage of by appropriate special demurrer. Crummey v. Bentley, 114 Ga. 749.

In view of the conclusion above announced, it is unnecessary to deal with either the general demurrer or the several other grounds of the special demurrer. The judgment dismissing the action is affirmed, because of the failure of Mrs. Nancy Rusk to make it appear to the court that she had authority to institute the action in behalf of James E. Stanley, irrespective of the question whether or not the petition set forth a cause of fiction, and without prejudice to him should suit be subsequently brought in his behalf by a person authorized to institute and maintain the action.

Judgment affirmed.

All the Justices concur, except Gaudier, J., absent.