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Berrain v. Katzen8/25/1993
e or reside within any of their respective districts, as is the case here, they are not authorized by statute to appoint a guardian for him. If the infant in this case had a guardian by whom she might have sued, and has not, it must have been taken in abatement, if at all."
Id. at 410.
We have been unable to find any prior decision of this Court discussing the appropriate sanction to apply in the case of a next friend who neglects his or her duties to prosecute a suit on behalf of a minor. In the case of In re Paca, supra, however, we considered the issue of the removal of a committee to a non compos mentis where the committee had a conflict of interest in litigation arising from a will in which the non compos had a competing interest. There the Court applied Md. Code (1888), Art. 16, ยง 125, holding:
"One of the principal objects of permitting suits in the alternative, where there is a committee, was doubtless to provide for just such a case as this, where the committee's personal interest is in conflict with that of the lunatic, or for some reason he ought not to be permitted to control the suit."
Id. at 51, 116 A. at 849.
In this century, courts in several states have dealt with the issue of the appropriate sanction to be applied where a next friend of a minor fails to cooperate with discovery. In McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62 (1913), the Supreme Court of Alabama held that the trial court abused its discretion by dismissing with prejudice a minor's action where the next friend failed to answer interrogatories propounded by the defendant. The court reversed and permitted the minor to bring the action within the three year statute of limitations after reaching the age of majority. The court said:
"We do not think the plea of the statute of limitations of one year was availing as a defense to this action. The plaintiff was clearly within the protection of section 4846 of the Code, which allows infants three years after becoming of age, as the period by law for the bringing of the action. The record shows that she was yet an infant when this action was brought. We do not think that she was barred by the act of her next friend in instituting a former suit within the period, which he allowed to be dismissed on account of his failure to answer interrogatories propounded to the plaintiff. The neglect or dereliction of a next friend, in the prosecution of a suit or in allowing a dismissal thereof, ought not to be allowed to prejudice the rights or remedies of the infant, and such seems to be the weight of the authority on the subject. Collins v. Gillespy, 148 Ala. 558, 41 So. 930; Tucker v. Wilson, 68 Miss. 693, 9 So. 898. He has no power or authority to settle or compromise the suit, and, if he cannot do this, surely his allowing the suit to be dismissed ought not to bar his right of action which he otherwise would have had."
Id. at 437, 61 So. at 65 (citations omitted).
Later, in Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566 (1925), the Supreme Court of Alabama held that while the court had the duty to protect the minor from harsh results, it would not permit a collateral attack of an earlier final judgment. The next friend alleged that a previous next friend suing on behalf of a widow and unborn child as sole distributees of the estate of the husband and father who died in a work-related accident acted in a fraudulent manner arising from his confidential relationship with the defendant employer. Recognizing that the collateral action was barred by res judicata, the court went on to differentiate its holding in McLaughlin, stating:
"The failure or ne
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