
    NANCE v. STOCKBURGER et al.
    
    1. Where an action is instituted in behalf of an alleged imbecile by persons designating themselves as his next friends, they are, upon an adverse termination of the case, primarily liable for the costs; and his estate is liable to them for the amount thereof, if he was in fact an imbecile, and the action was brought in good faith.
    2. When, therefore, such an action was brought and voluntarily dismissed by the next friends, it was, in the absence of any evidence either as to the fact of imbecility or as to bona fides in instituting the suit, erroneous to tax the costs against the alleged imbecile and enter judgment against him for the same. If he was not an imbecile when the petition was filed, it was wrongfully brought; and if he was, -the above-stated rule as to costs was applicable.
    Argued October 2,
    Decided October 30, 1900.
    
      Motion to tax costs. Before Judge Eite. Catoosa superior court. August term, 1900.
    
      R. J. & J. McCamy, for plaintiff in error.
    
      Payne & Payne, contra.
   Lewis, J.

S. E. and C. M. Stockburger, as next friends of John A. Nance, filed a petition against R. W. and Emma Nance, to set aside a deed from John A. to R. W. and Emma Nance, on tbe ground that John A. was incapable of making a deed, and was unduly influenced thereto by said R. W. and Emma. It seems that this came up for trial at tbe August term, 1898, of Catoosa superior court, and resulted in a verdict for tbe plaintiffs. A motion for a new trial was made by tbe defendants, which being overruled, tbe case was carried by writ of error to tbe Supreme Court, where tbe decision of tbe lower court was reversed. Tbe case was again called for a bearing at tbe August term, 1900, of Catoosa superior court, when tbe plaintiffs voluntarily dismissed their case, and moved tbe court to grant an order signing up judgment for tbe costs in tbe case against John A. Nance, which order tbe court granted, and judgment was signed accordingly. To this decision John A. Nance^ excepts.

While tbe petition of tbe plaintiffs alleges tbe imbecility of John A. Nance, tbe person for whose benefit plaintiffs allege tbe suit was brought, there ig nothing in tbe present record sustaining this allegation. There is no proof whatever that be was incapable of making a contract, or that be was a minor, or that be desired tbe institution of this suit to cancel a conveyance that be bad made to Iris brother and wife. Tbe court, it seems, upon motion of bis alleged next friends, entered a judgment against him for tbe costs of this suit without any proof whatever having been offered to show that they bad instituted tbe suit for him in good faith, and that be was non compos mentis. We know of no law in Georgia that authorizes any one, without authority from any court, to voluntarily institute a suit as next friend for an imbecile or lunatic. It has frequently occurred in the practice that such suits are instituted by persons as next friends of minors; but when tbe property of an insane person or imbecile, who has not sufficient capacity to manage tbe same, is being wasted, or when it has been seized by others wrongfully, to the injury of one in such a condition, it is evidently, under the statute, the duty of the ordinary to appoint a guardian for such imbecile or lunatic. In the event a guardian is duly appointed in this way, there can be no question about Ms right to institute an action M any court, whenever it becomes necessary to protect the personal or property rights of such a ward. We do not mean to say that a person could not, as next friend, without order of court, bring such an action for the protection of the rights ■of an irresponsible person; but we are confident that when it is done, and the next friend voluntarily dismisses Ms action, he has no right to ask that the court render a judgment for costs against the party for whose benefit he pretends to be acting. The general rule seems to be that in an action prosecuted by a next friend for an Mfant, the latter is not primarily hable for the costs of an unsuccessful sMt. These costs are usually borne in the first instance by the next friend, or guardian ad litem, and tMs habihty has been held to be the reason for the appomtment of a next friend or guardian ad htem in a case. Harper v. Whitehead, 33 Ga. 144, (2); 14 Enc. Pl. & Pr. 1044-5. Daniell, M Ms work on Chancery Plead-Mg and Practice (vol. 1, *79 — 81), seems to recognize the doctrine that the habihty of a next friend for the costs of dismissing a bill, or an unsuccessful proceeding instituted by Mm, is apphcable only as between the next friend and the defendant in the cause; for the court is usually anxious to encourage those who will stand forward in the character of next friend on behalf of Mfants, and will, whenever it can be done, allow the next friend the.costs, out of the infant’s estate, of any proceeding Mstituted by Mm on behalf of the infant, even though unsuccessful,provided he' appears to have acted bona fide for the benefit of the Mfant. The author states further that such an Mquiry, as to whether the suit was Mstituted for the benefit of an incapacitated person, would not be directed on the application of a next friend, but the latter must- carry it at Ms own risk. We know of no prMciple of law upon wMch the plaMtiff M error M the present case could properly have been held by the judge to be primarily hable for the costs.

Judgment reversed.

All concurring, except Little, J., absent.  