
    Bazor v. J. J. Newman Lumber Co.
    (Division B.
    Oct. 29, 1923.
    Suggestion of Error Overruled Nov. 26, 1923.)
    [97 So. 761.
    No. 23582.]
    INfants. JSx parte petition for removal■ of disabilities, signed by minor througji father and mother as next friends,' held sufdctent.
    
    An ex parte petition for the removal of the disabilities of a minor, filed by the minor through his father and mother as next friends, meets the requirements of chapter 123, Laws of 1918, providing that if any two of the nearest of kin within the third degree, 'known to the- minor or his copetitioners, shall unite with the minor in his application, it shall not be necessary to make any person defendant thereto,
    Appeal from circuit court of Lamar county.
    IIon. J. Q. Langston, Judge.
    Action by Estus Bazor against the J. J. Newman Lumber Company. Prom a judgment sustaining demurrers to declarations and dismissing the cause, plaintiff appeals.
    Affirmed.
    
      R. N. Miller, L. F. Hendrick, and W. L. Cranford, for appellant.
    The two pleas of appeliee replied-to set up the fact that Estus Bazor, together with his father and mother, J. W. Bazor -and Margaret Bazor, as bis next friends, on tbe-day of January, 1920, filed an ex parte petition in vacation in tbe ‘chancery court of Covington county, by which be was emancipated by decree of said court. Our replications averred that the chancery court of Coving-ton county got no jurisdiction of said suit 'to remove appellant’s disabilities, because two of tbe next of bin within tbe third degree did not join therein, and that he had a number of brothers and sisters, none of whom joined in said petition. Our contention is that two of his nearest of bin and his fiext friend must join with him in petition. Naming his father and mother as next friends is not enough. In other words a next friend is necessary for him to sue at all and the statutes which this court has strictly construed, requires two of his' nearest of bin to join. This was exactly what was held in the Jackson v. Jacksqn Case, 105 Miss. 868, on pages 874 and 875; except in the Jacbson case it was held that all the bin within the third degree bfiown to the minor must join in the petition in an ex parte proceeding, because the case was decided before chapter 123 of the Laws of 1918 was passed. Now if we consider the father his fiext -friend to enable him to sue, then his mother was the only bin who joined him.' The statute (section 545) and as amended by chapter 123 of the Laws of 1918, must join him, one, his next Mend to enable him to sue, and two of his nearest of bin, are all made necessary parties by the statutes to guard his interests. This precise question is decided' in favor of our contention by the following cases: Jackson v. Jackson, 105 Miss. 868, 63 So. 275, Notes to said case, Annotated Cases 1915 D 490; Hardy et al. v. Pepper, 128 Miss. 27; Milham et al. v. Higdon, .95 So. 433, and the cases cited by these authorities.
    
      Tally & Mayson and II. Gassedy Holden, for appellee.
    Under the law as it existed prior to the enactment, of chapter 123 (page 122, Acts of 1918), the contention of-appellant, would manifestly be sound, since the case of Jackson v. Jackson, 105 Miss. 868, 63 So. 275,. was based on section 545, Code of 1906. The'construction placed upon section 545, Code of 1906, in the Jackson case, was no doubt responsible for the amendment of the law, as found in- the Act of 1918.
    The cases of Milham et al. v. Higdon, 181 Miss. 260, 95 So. 433, and Hardy et al. v. Pepper, 128 Miss. 23, 90 So. 181, cited by a counsel are decisions on section 545, Code of 1906, before enactment of chapter 123, Acts of 1918, and are not authorities in the instant- case.
    We insist that the application, to remove the disability of minority, on the part of the father and mother, as authorized by chapter 123, Acts of 1918, should havei been granted, and that the decree removing the disabilities of minority of their ‘son is authorized by that statute, that no other person need be made a party to the proceedings at all.
    The legislature evidently thought, if a minof’s father and mother desired the disability of the minor removed, then, it was a matter that did not concern any one else. However, this court has expressly decided in the case of Hardy v. Pepper, 128 Miss. 27, 90 So. 981, that the proceeding had in the instant case was perfectly valid. Says the court: “It will be noted that section 545 was amended by chapter 123, Laws of 1918, and it is how only necessary for two of such kindred to unite in the application.”
    It is respectfully submitted that the petition for the removal of the disability of minority filed in the chancery court of Covington county, conferred jurisdiction upon that court, and the decree thereon is a valid judgment. This,proceeding was under the provisions of section 302, Hemingway’s Code, as amended by chapter 123, Laws of 1918, and was regular and lawful in every respect. This statute does not require the petition to be filed by next friend as in the case of section-301, Hemingway’s Code. But, if it does so require, then its requirement was met by naming the mother and father the next friends of the minor.
    The decree removing the disability of minority being-valid, the release executed. by the appellee was valid, and the demurrer was properly sustained by the lower court.
   Cook, J.,

delivered the opinion of the court.

The. appellant filed a declaration in the circuit court of Lamar county, alleging personal injuries and seeking to recover damages therefor in the sum of two thousand five hundred dollars. The appellee, defendant in the court below, filed two special pleas, averring that at the time of the alleged injury the appellant was a minor; that, acting through his father, J. W. Bazor, and his mother, Margaret Bazor, as next friends, he filed a petition in the chancery court of Covington county in which he set forth the fact of the injury sustained by him; that the appellee denied liability for such injury, but had offered -to pay him an agreed sum to avoid litigation; that he had conferred with counsel and friends, and upon their advice represented that it would be to his best interest to compromise and settle any claim which he had against appellee on account of said injuries; that in order to make such settlement it was necessary for his disabilities of minority to be removed to the extent of enabling him to make the settlement and, for the consideration named, to execute a valid and binding release in favor of appellee from all liability to him on account of said accident and resulting injuries, and praying that his disability of minority be removed for the purpose and to the extent stated. These pleas further averred that on the 24th day of January, 1920, the prayer of this petition was granted and a decree was entered removing the disability of minority of the said minor to the extent and for the purpose prayed for in the petition; that on the 11th day of February, 1920, pursuant to the authority conferred upon appellant by the decree removing bis disability of minority the appellee paid to the appellant the sum of seven hundred and twenty-five dollars in full and complete satisfaction and release from any and all damages sustained by him by reason of the alleged injury; that the appellant accepted said sum in full and complete settlement and satisfaction of such damages sustained by him, and thereupon executed and delivered to appellee a full release in writing, a copy of which was filed as an exhibit to and as a part of the plea.

To these pleas the appellant filed replications, averring that the chancery court did not acquire jurisdiction in the proceedings to remove appellee’s disabilities of minority, and that ij;s decree was void because twó of his nearest of kin within the third degree did not join in said petition as individuals, and no process was issued for said nearest of kin. 'The appellant filed demurrers to these replications, and these demurrers were sustained and extended to- the declaration, and the cause dismissed, and from this judgment this appeal is prosecuted.

The only question presented for decision by this record is whether the chancery court had jurisdiction to remove the disability , of minority of appellee upon an ex parte petition presented by the minor through his father and mother as next friends. It is the contention of the appellant that the petition must be presented by the minor by his next friend, and that in addition two others of his nearest of kin must join in the petition, or, in other words, that the father or mother cannot act in the dual capacity of next friend and nearest of kin, and in support of this contention he relies upon the cases of Jackson v. Jackson, 105 Miss. 868, 63 So. 275, Ann. Cas. 1915D, 489; Hardy v. Pepper, 128 Miss. 27, 90 So. 181; and Milham v. Higdon, 131 Miss. 260, 95 So. 433. In these cases the court had under consideration section 545, Code of 1906 (section 302, Hemingway’s Code) and it was held, as expressly provided by this section, that in an ex parte proceeding all the kindred within the third degree must be made parties to or join in the application. However, the requirement of this section that all the kindred within the third degree must be joined in the application was materially changed by qn amendment thereto found in chapter 123, Laws of 1918; the section as amended providing that— “If any two of such kindred known to [the minor] or his copetitioners shall unite with him in his application, it shall not be necessary to make any person defendant thereto.’''

While it is true that in the present case the father and mother of the minor are joined in the petition as nest friends, they are likewise the two nearest of kin, who by nature should be most interested in the welfare of- the minor, and they are as effectively parties to the petition as if named therein as nearest of kin. We know of no reason why they cannot be joined in t;he dual capacity, and, since the statute as amended only requires that two of the nearest of kin shall unite with the minor in his application, we think the petition in this case was sufficient to confer jurisdiction on the chancery court, and that the decree entered thereon is valid.

The judgment of the court below will therefore be affirmed.

Affirmed.  