
    Row et al. v. Row, by, etc.
    
      Imbecile — Action to recover property from — Must be by guardian, not next friend.
    
    An action to recover property belonging to an imbecile, must be brought by guardian, and not by a next friend.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Perry county.
    The petition in the common pleas averred that on May 19, 1891, Philip Allen, who is made a defendant, was duly appointed and qualified as guardian of said Ellen Row, that on the 18th day of January, 1890, said Jerome Row and Lucy Row his wife, obtained from said Ellen Row, aged 80 years, a large part of her property without consideration and in fraud of her rights; that on other days named, other property was fraudulently obtained; that she is an imbecile and was so at the time of such conveyances; that her said guardian upon written request refuses to begin an action to recover said property, and that therefore this action is brought in the name of said Ellen Row by Susannah Dorsey, who prosecutes the suit for Ellen Row, an imbecile, as the next friend and only child of the said Ellen Row. The common pleas sustained a demurrer to this petition,- for the reason that the plaintiff had no capacity to bring the action, and rendered judgment in favor of defendants. This judgment was reversed by the circuit court. A petition in error was thereupon filed in this court, seeking to reverse the judgment of the circuit court.
    
      Ferguson & Johnson and II. D. Cochran, for plaintiffs in error.
    
      Charles Iloy, for defendant in error.
   By the Coürt:

The action should have been commenced and prosecuted by the guardian of Ellen Row. Revised Statutes, section 4998. In case of the refusal of the guardian to bring the action, he should be removed and another guardian appointed. Upon motion and showing that a guardian is neglecting to bring an action to recover the property of his ward, the probate court should remove such guardian and appoint another who would bring the proper action. It cannot be tolerated that the rights and property of an imbecile should be controlled by a next friend, in opposition to the wishes of the guardian.

The guardian is responsible to the court for his conduct, but the next friend is responsible to nobody. The judgment of the court of common pleas was right, and the circuit court erred in reversing- it.

The judgment of the circuit court is reversed and. that of the common pleas affirmed.  