
    In the Matter of VICTORIA FORTADO, an infant married under legal age.
    Appeal from Decision of Judd, C.J.
    January Term, 1888.
    Judd, C.J., McCully, Preston, Bickerton and Dole, JJ.
    Section 1314 Civil Code provides that “ a suit to annul a marriage on the ground that one of the parties was under legal age, may be brought by the parent or guardian entitled to the custody of such minor.”’
    Held, allowing demurrer by the minor, that the suit should have been brought in the name of the minor by the parent or guardian, or in the parent’s own name, making the minor a defendant.
    Per Dole, J. : The demurrer should be sustained solely on the ground that the first rule of Court had not been complied with in the caption of the petition.
   Opinion of the Court, by

Bickerton, J.

This matter comes here on appeal from a decision of the Chief Justice, overruling the demurrer of Pedro Fernandez, respondent, to the bill of complaint, who for cause of demurrer shows “that by said bill of complaint this defendant is alone made party defendant thereto, whereas it appears by said bill that the said Victoria Fortado is a necessary party defendant.”

Section 1314, Civil Code, provides that “a suit to annul a marriage on the ground that one of the parties was under legal age, may be brought by the parent or guardian entitled to the custody of such minor.”

After viewing the pleadings and hearing the arguments of counsel on both 'sides, we are of opinion that the intention of the statute is that suits of this nature should be brought in the name of the minor, by the parent or guardian, and that this suit should have been brought in the name of Victoria Fortado by her father Antone Moniz Fortado, or in his own name, and the minor might have been made a party defendant. For this reason the demurrer is sustained, and the plaintiff has leave to amend.

V. V. Ashford, for petitioner.

W. O. Smith, for respondents.

We notice that the defendant is simply named in the complaint as Pedro; we think his full name, which appears to be Pedro Fernandez, should be inserted. Also that the allegation of marriage is very uncertain and indefinite. We think the time and place of marriage, and by whom solemnized, should be set forth particularly.

I am unable to agree with the reasons given in the opinion of the majority of the Court, but join with them in sustaining the demurrer filed in the case, solely on the ground that the first rule of Court has not been complied with by the plaintiff in the caption of his petition.

Sanford B. Dole.  