Where, as here, a suit in the name of a minor by another as next friend is filed at a time when the minor has no guardian, one later appointed as guardian--but from the order of his appointment an appeal was taken which is still pending--has no right under the law to enjoin the next friend from prosecuting the suit.
On February 17, 1952, as a result of a common disaster by electrocution caused by contact With a broken high voltage wire maintained by the Douglas County Electric Membership Corporation, Thomas Ralph Chapman, a minor child (9 years of age), became the sole survivor of a family of five. On February 20, 1952, A. D. Giles, the defendant in error here and maternal grandfather of the child, applied for temporary and permanent guardianship of the child. Subsequently thereto, on February 28, 1852, Harold Chapman, the plaintiff in error and paternal uncle of the minor, filed his petition asking that he be made permanent guardian. Thereafter, on March 14, 1952, A. D. Giles, as next friend, filed suite on behalf of the minor against the Douglas County Electric Membership Corporation, seeking damages for the wrongful death of the child's parents. After a hearing on April 29, 1952, Harold Chapman was appointed guardian, but this order was appealed to the Superior Court of Douglas County. On July 2, 1952, alleging himself to be the legally appointed guardian, Harold Chapman, filed an action to restrain and enjoin the legal actions for damages, taken by the next friend, and alleges that, having, on July 2, 1952, filed identical suits for damages on behalf of the minor for the wrongful death of the parents--it was the duty of thee plaintiff to prosecute these actions and protect, supervise, and control the legal rights of the minor, and that the defendant was proceeding illegally and against the will of the guardian duly appointed, who is the proper person to proceed upon these causes of action.
After an interlocutory hearing on the above-stated case, the court entered its order denying the relief prayed for; and to this judgment and certain rulings previously made during the hearing, the petitioner excepts to this court.
The foregoing ruling is controlling and requires a judgment of affirmance. It is, therefore, unnecessary to deal here with the further question that counsel have argued extensively, which is whether or not one in the position of the plaintiff in error has any interest or is authorized to plead or take any action as guardian until the question of his appointment has been adjudicated by a determination of the appeal therefrom to the superior court.
Judgment affirmed. All the Justices concur, except Head, J., who concurs specially, and Atkinson, P. J., and Wyatt, J., not participating.