
    S.J.H. v. C.J.
    2941129.
    Court of Civil Appeals of Alabama.
    June 21, 1996.
    Trudie Anne Phillips, Anniston, for Appellant.
    No brief filed for Appellee.
   YATES, Judge.

C.J., a minor, petitioned the trial court to order her mother, S.J.H., to pay her college education expenses. The mother moved to dismiss the petition on the grounds that C.J. had not reached the age of majority and did not have the legal capacity to file an action; the court never ruled on that motion. After an ore tenus proceeding, the court granted the petition and ordered the mother to pay $400 per month to C.J. or, in the alternative, to pay $225 per month and to provide her with the use of an automobile. At the time of the hearing, C.J. was 18 years old; she has now reached the age of majority. On the mother’s post-trial motion, the court amended the judgment, ordering that the payments be made for a five-year period or until C.J. had completed her education, whichever occurred first. The mother appeals, arguing, among other things, that the court erred in failing to grant her motion to dismiss C. J.’s petition and in exercising jurisdiction over a claim that she says was not actionable under Alabama law.

Rulé 17(c), Ala. R. Civ. P., states: “Whenever a minor has a representative, such as a general guardian or like fiduciary, the representative may sue in the name of the mi-nor_ If a minor ... does not have a duly appointed representative, that person may sue by that person’s next friend.” C.J. did not sue by her next friend, and the court did not appoint one. Although the mother’s motion to dismiss placed both C.J. and the court on notice of this deficiency in the complaint, neither took any action. Because C.J. never amended her claim to make it comply with Rule 17(c) and the trial court failed to dismiss the complaint, we reverse the judgment and remand the case for the trial court to enter an order dismissing C.J.’s petition.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ROBERTSON, P.J., and CRAWLEY, J., concur.

THIGPEN and MONROE, JJ., dissent.

THIGPEN, Judge,

dissenting.

I do not agree that the judgment must be reversed for the trial court to dismiss the action for lack of capacity to sue. It appears to me that Barlow v. Humana, Inc., 495 So.2d 1048 (Ala.1986), and Blue Star Ready Mix v. Cleveland, 473 So.2d 497 (Ala.1985), preclude the dismissal of the minor’s cause of action on the sole grounds of incapacity to bring an action in his or her own name; as such, the trial court should have allowed the complaint to be amended to include a guardian or next friend. I conclude that by hearing the case and rendering a judgment on the merits while the plaintiff was a minor, the trial court, by implication, denied the motion to dismiss for want of capacity. Inasmuch as the trial court rendered a judgment favorable to the minor, I would conclude that the error, if any, was harmless. Rule 45, A.R.App.P.

Having so concluded, I now determine that this court should address the issue presented on appeal; i.e., is a child not of divorced parents, who is not disabled or of an unmarried union, entitled to bring an action for post-minority support for education purposes? Our Supreme Court has answered that query for purposes of children of divorce in Ex parte Bayliss, 550 So.2d 986 (Ala.1989); for children of unmarried couples as in Ex parte Jones, 592 So.2d 608 (Ala.1991); and for disabled children as in Ex parte Brewington, 445 So.2d 294 (Ala.1983). No case with this precise set of facts has been presented for appellate review. For the foregoing reasons, I conclude that this court should address this case on its merits as argued in the appellant’s brief.

MONROE, J., concurs. 
      
      . The record indicates that the court never specifically denied the motion; the court ultimately heard and ruled on the petition and, therefore, must have deemed the motion to have been denied.
     