
    VERIFICATION OF PETITION.
    Common Pleas Court of Montgomery County.
    Ray Menke by Henry Menke, His Next Friend, v. The Kinsey Motor Car Company.
    Decided, May 1, 1919.
    
      Verification — Statutory Provisons as to Verification Toy Party — Not ÍpplicaTole to Infant.
    
    The provisions of Section 11351, permitting the verification of a pleading by a party, is without application to an infant in an action ■brought by his next friend, and'a motion lies to strike from the files a pleading verified by an infant.
   Snediker, J.

This case is before the court on a motion to strike the petition from the files for the reason that the same is not properly verified.

Upon examination of the petition we discover that the verification was made and signed by Ray Menke, the plaintiff who brings the suit, by Henry Menke, his next friend. A consideration of the -motion involves the capacity of the next friend as such in bringing’ an action for an infant. The relation of a prochein ame, or next friend, to the infant is similar to that of a guardian ad litem to his ward. ‘1 The recital of the name of the next friend in the petition, as the next friend of the infant plaintiff, does not make him any more a party to the suit than the recital of the name of a guardian ad litem as guardian for minor defendants in the pleadings of its entry upon the docket makes him a party to the suit. Both are mere agents appointed either theoretically or in fact to conduct the business of the suit for the real parties whom they represent. The infant is the real party whose rights are bound by the judgment. ’ ’

By the provision of the Code found at Section 11247 the action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend, the court may dismiss it, if it is not for the benefit of the infant, or substitute the guardian or any person as the next friend. This provision shows the control of the court over the action not only with reference to the propriety of its being brought, but with reference to the suitability of the very person who brings the action as such next friend.

Section 11351 of the General Code recites:

“Every pleading and motion must be subscribed by the party or his attorney, and every pleading of fact except as provided in the next following section must be verified by the affidavit of the party, his agent or attorney * *

Section 11351 of the General Code reads in part:

‘ ‘ The affidavit verifying a pleading can be made by the agent or attorney only, * * * subdivision 2, when the plaintiff is an infant or of unsound mind or imprisoned * *
“An infant is entitled to sue on any cause of action accruing to him, and, conversely, may be sued on any cause of action accruing against him, but he is not considered as having sufficient-discretion to conduct the suit in person, and, therefore, the law provides a competent representative to conduct the suit for him. It is a general rule that actions by infants must be prosecuted in the name of the infant by his guardian or by a third person who is styled the next friend, or prochein ame, and an action against an infant must be brought against him in his proper person, but must be defended by a guardian ad litem, though this rule is not without exception.” 10 Cyc. of Pleading and Practice, page 594.

The verification of the pleading is one of the essential and important acts in the conduct of a suit. The next friend, if he appears as he does here, to bring the action on behalf of his infant, ought to be required to do whatever may be necessary in its prosecution. The infant, while always the party plaintiff, is acting, as we have already indicated, through, the next friend as his agent, and that agent is the only one recognized by the law of Ohio as qualified to perform the several acts necessary. It was with that in mind that the Legislature enacted Section 11358, which has been already referred to, and provided in Section 11351 that every pleading must be verified by the affidavit of the party, his agent or attorney.

We do not regard that part of Section 11351, which requires and permits verification by a party, as applying to the infant plaintiff in an action where suit is brought by his next friend. It will readily be seen by counsel that, if any o.ther view was taken, a situation might arise in which an infant not capable of understanding the nature of an oath would undertake the verification of a pleading. With respect to his ability to verify, we are of the opinion that the general rule should be made that he may not do so, and that that act must be left to the person who in fact represents him in the beginning and throughout the action.

The motion is sustained.  