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Berrain v. Katzen8/25/1993
glect of the next friend to properly follow up and prosecute the equity suit, if such be true as set up by surrejoinder, cannot avoid the effect of the decree on collateral attack. True, a next friend who assumes to represent and protect the rights of an infant occupies a fiduciary relation. He owes the infant good faith and diligence. The court also has a duty in conserving the rights of infant litigants. Because of the fiduciary or trust relation assumed, a flagrant neglect of duty, resulting in the sacrifice of the infant's rights, may be a fraud, which, if participated in by the opposing party, may furnish ground for relief in equity. But unless set aside in a direct proceeding, the decree remains and must be given all the force the law accords a valid judgment. Moreover, no fraud in the procurement of the decree is averred. At most, the record merely shows that after tendering an issue by the bill and joinder in issue by answer, the complainant neglected to take proof, if any was available and left it open to respondent to proceed according to the rules of practice in bringing the cause to a hearing and decree on the merits.
"The policy of the law demands that the effects of judgments be mutual; that an infant, in court in the manner provided by law, be bound by the decree duly rendered as any other party. Any modification of such rule to meet the exigencies of a particular case would open the door to greater evils than that sought to be avoided.
"Mclaughlin v. Beyer was a case in which the suit was dismissed because of failure of the next friend to answer interrogatories propounded under the statute. The record affirmatively showed there was no trial on the merits, but a dismissal of the suit, instead of a removal and dismissal of the next friend, for his personal contempt of court. It is not an authority for the proposition that a decree on merits can be collaterally assailed upon the ground that the next friend might have conducted the suit to better effect."
Id. at 333-34, 110 So. at 570 (citation omitted). See also Citizens Walgreen Drug Agency, Inc. v. Gulf Ins. Co., 282 Ala. 648, 213 So. 2d 814 (1968); and Alexander v. Alexander, 227 Ala. 322, 324, 15 So. 142 (1933).
The Illinois courts have established a policy regarding suits negligently prosecuted by a next friend on behalf of a minor. In Severs v. Country Mut. Ins. Co., 89 Ill. 2d 515, 434 N.E.2d 290 (1982), the Supreme Court of Illinois stated:
"This court long ago observed that ' child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the whim or mercy of some self-constituted next friend to enforce its rights.' This concern for minors' rights has been a continuing one: 'Minor litigants are, of course, entitled to special protection by the courts, particularly to see that their rights are protected even from the neglect of their representative in order to do substantial justice.' Indeed, this court's decisions make it clear that the public policy of this State requires that ' . . . a minor should not be precluded from enforcing his rights unless clearly debarred from so doing by some statute or constitutional provision.'"
Id. at 520-21, 434 N.E.2d at 292 (citations omitted). In Brandon v. DeBusk, 85 Ill. App. 3d 645, 407 N.E.2d 193 (1980), minor children sued for personal injuries through their father and next friend. The action was dismissed by the trial court for failure or the next friend to comply with discovery in the form of interrogatories and requests for production of documents. The plaintiffs sought to vacate the dismissal. When the trial court denied the motion, the plaintiffs appealed. In revers
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