GA Code § 9-2-28 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 2 - Actions Generally|Article 2 - Parties|§ 9-2-28. Effect of Action by Minor Alone

 An action commenced and prosecuted by an infant alone shall not be void. Although the action may be defective in wanting a guardian or next friend, the defect shall be amendable before verdict and cured by verdict.   (Orig. Code 1863, § 3187; Code 1868, § 3198; Code 1873, § 3263; Code 1882, § 3263; Civil Code 1895, § 4947; Civil Code 1910, § 5524; Code 1933, § 3-115; Ga. L. 1959, p. 79, § 1.)   Cross references.   - Age of legal majority, § 39-1-1.   Law reviews.   - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).   JUDICIAL DECISIONS   Section procedural in nature.    - This section deals with ability of infants to commence action with or without appointment of guardian or next friend; it is procedural in nature. Jones v. Hartford Accident & Indem. Co., 132 Ga. App. 130, 207 S.E.2d 613 (1974).    There is no substantial difference between prochein ami (next friend) and guardian ad litem. Sharp v. Findley, 59 Ga. 722 (1877).   Next friend and guardian ad litem are officers of court.    - Minor may be a petitioner by next friend, which is equivalent to being represented by a guardian ad litem, and in either event the next friend or guardian ad litem is an officer of the court for the special protection of the minor. Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931).    There is no substantial difference between a prochein ami (next friend) and a guardian ad litem; the former denomination is usually applied when the representation is for an infant plaintiff and the latter when it is for an infant defendant, but in either case, the representative of the infant is regarded as an officer of the court. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).    Infant's nearest relation should be next friend. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).    Appointment of next friend is primarily for the court, but usually the infant in the infant's petition names the next friend and the court by allowing the action to proceed ratifies the appointment. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).    Infant who prosecutes action is bound by verdict rendered even if no guardian ad litem was appointed. Evans v. Collier, 79 Ga. 319, 4 S.E. 266 (1887).   Applicability of section to irregular or void appointment.    - If an irregular or void appointment is made, the rule of this section applies. White v. Rowland, 67 Ga. 546, 44 Am. R. 731 (1881).   Substance of action determinative.    - Action by father suing for the use of minor son is in substance an action by the son, and while the more regular form is for the minor to sue by next friend, it is the substance of the action and not its technical form that must determine its true character. Vale Royal Mfg. Co. v. Bradley, 8 Ga. App. 483, 70 S.E. 36 (1911).   Action does not abate when minor comes of age.    - When action is brought by infant through next friend, and infant comes of age before the case is finally disposed of, the action does not abate; the action may proceed in the infant's name, and the next friend will no longer be a necessary party. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).   Identity of action brought by next friend and action by minor on coming of age.    - Action in the name of a minor by next friend is substantially an action by the minor, and if the minor on arriving at majority dismisses such action, an action subsequently brought by the minor in the minor's own right is as to the party plaintiff substantially identical with the former action; when it is brought against the same defendant and upon the same cause of action, the suits will be treated as identical. Young v. Western & A.R.R., 43 Ga. App. 257, 158 S.E. 464 (1931).   Amendment of pleading to name guardian.    - Name of guardian or next friend should be added by amendment to petition, in order to prevent a nonsuit (involuntary dismissal) after timely objection thereto. Vale Royal Mfg. Co. v. Bradley, 8 Ga. App. 483, 70 S.E. 36 (1911); Mathews v. Fields, 12 Ga. App. 225, 77 S.E. 11 (1913).    Petition brought by minor may be amended to proceed in the name of a person who is sui juris as next friend. Cook v. English, 85 Ga. App. 739, 70 S.E.2d 86 (1952).   Amendment in appellate court.    - Since two minor appellants were not represented by a guardian ad litem or next friend at the time bill of exceptions was presented and certified (pursuant to former appellate procedure), the bill of exceptions was amendable in the Supreme Court by adding the names of an adult as next friend for such minors as a party appellant. Cannon v. Whiddon, 194 Ga. 417, 21 S.E.2d 850 (1942).   Failure to act through next friend cured by verdict.    - Minor must bring an action through next friend, but when a minor acts personally and there is no objection to the minor's proceeding alone, the defect is cured by the verdict and the judgment is not void. Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935).   Failure to make infant a party not cured by verdict.    - Proceeding by administrator praying for direction as to distribution of estate could not be treated as an action commenced and prosecuted by an infant alone, nor could failure to comply with statutory requirements as to properly making infant a party be taken as a defect cured by verdict. Brown v. Anderson, 186 Ga. 220, 197 S.E. 761 (1938).   Appointment of guardian on plaintiff's motion.    - If infant fails or refuses to appear and move for appointment of guardian, court, at the instance of the plaintiff, will appoint one for the infant. Oliver v. McDuffie, 28 Ga. 522 (1859); Wood v. Haines, 72 Ga. 189 (1883).   Action not dismissible when brought by next friend rather than guardian.    - Action in the name of minor by next friend is not subject to general demurrer (motion to dismiss) because te action was not brought by a guardian, even if the minor had a guardian at the time the action was filed. Pardue Medicine Co. v. Pardue, 194 Ga. 516, 22 S.E.2d 143 (1942).   Guardian ad litem unnecessary when next friend acts.    - When infant plaintiff appears by next friend, formal order of court appointing guardian ad litem is not necessary to give the next friend standing therein. Ross v. Battle, 113 Ga. 742, 39 S.E. 287 (1901).   Unless minor's interests would not be protected.    - When minor institutes litigation by next friend, there is no legal necessity to appoint guardian ad litem, unless it appears to the court that the next friend was not a suitable person or for some other reason the interests of the minor would not be properly protected. Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931).   Tort action properly brought by guardian ad litem or next friend.    - When an action is brought by a minor for a tort committed upon the minor, the proper method is for the petition to be brought in the name of the minor, by the minor's guardian ad litem or next friend. Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369, 170 S.E. 549 (1933).    Minors may intervene in action instituted by trustee acting for their benefit, without appointment of guardian ad litem. Watson v. Equitable Mtg. Co., 132 Ga. 154, 63 S.E. 912 (1909).   Minor intervenor in foreclosure proceedings bound.    - Minor who intervenes by filing counter-affidavit in foreclosure proceedings to subject minor's automobile to a lien for repairs was bound by verdict rendered. Royal v. Grant, 5 Ga. App. 643, 63 S.E. 708 (1909); Sams v. Covington Buggy Co., 10 Ga. App. 191, 73 S.E. 18 (1911).    Infant may maintain cross action or plea of recoupment in the infant's own name. Levy v. McPhail, 33 Ga. App. 784, 127 S.E. 793 (1925).   Divorce and alimony petition brought by minor wife.    - Infant wife of sufficient age to enter into marriage contract may maintain action to dissolve marriage relation and for alimony. Bentley v. Bentley, 149 Ga. 707, 102 S.E. 21, 17 A.L.R. 896 (1920).    Action brought in name of administrator of mother's estate for use of children seeking recovery for wrongful death of father was in substance an action by the children, and a proper construction of the petition was that it was brought for the minors by their next friend, plaintiff administrator; hence, claim of defendant that plaintiff was not the proper plaintiff was without merit. Keenan Welding Supplies Co. v. Bronner, 100 Ga. App. 400, 111 S.E.2d 140 (1959).   Accounting proceeding properly maintained.    - Action by guardian acting in behalf of minor by reason of disqualification of trustee who might otherwise have acted as testamentary guardian, seeking settlement of accounts with executrix, is properly maintained. Perdue v. McKenzie, 194 Ga. 356, 21 S.E.2d 705 (1942).    This section permits infant, on becoming of age, to drop trustee's name where latter died during pendency of action, and to provide a next friend for the minor party. Blalock v. Newhill, 78 Ga. 245, 1 S.E. 383 (1886).    While special guardian appointed in workers' compensation proceeding to receive compensation for use and benefit of minor claimant was not appointed until time of award, the special guardian's appointment at that time cured the defect and made such guardian a party to the case. Utica Mut. Ins. Co. v. Rolax, 87 Ga. App. 733, 75 S.E.2d 205 (1953).    Infant is bound by judgment in case brought through next friend, as though the infant were an adult, in the absence of gross laches, fraud, or collusion. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).    Substitution of parent as party by amendment, unless, under this section, the parent has come into the action to prosecute infant's right rather than the parent's own right, is improper, but it will stand unless objected to in proper time. Ansley v. Jordan, 61 Ga. 482 (1878); Ross v. Battle, 113 Ga. 742, 39 S.E. 287 (1901).    Cited in Bartlett v. Batts, 14 Ga. 539 (1854); Alspaugh v. Adams, 80 Ga. 345, 5 S.E. 496 (1887); Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932); Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 183 S.E. 210 (1935); Webb v. General Accident, Fire & Life Ins. Co., 72 Ga. App. 127, 33 S.E.2d 273 (1945); Jackson v. Sanders, 199 Ga. 222, 33 S.E.2d 711 (1945); Lewis v. Williams, 78 Ga. App. 494, 51 S.E.2d 532 (1949); Lowry v. Smith, 103 Ga. App. 601, 120 S.E.2d 47 (1961); Thomas v. Byrd, 107 Ga. App. 234, 129 S.E.2d 566 (1963).   RESEARCH REFERENCES   Am. Jur. 2d.   - 42 Am. Jur. 2d, Infants, § 149 et seq. 59 Am. Jur. 2d, Parties, §§ 363, 368 et seq., 392.   C.J.S.   - 43 C.J.S., Infants, § 312. 67A C.J.S., Parties, § 11.   ALR.    - Right of next friend to compensation for services rendered to infant in the litigation, 9 A.L.R. 1537.    Right of ward to maintain action independent from his general guardian, on contracts or other obligations entered into by the guardian on ward's behalf, 102 A.L.R. 269.