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Berrain v. Katzen8/25/1993
ing the trial court, the appellate court explained the policy regarding protection of minors where the next friend neglects his or her duties:
"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. The principle has been applied to discovery disclosure rules. Even where minors are not involved the drastic sanction of dismissal for failure to comply with discovery should only be invoked where the plaintiff shows a deliberate and contumacious disregard of the court's authority. It follows that where minors are involved alternative sanctions should even be more extensively pursued.
Id. at 648, 407 N.E.2d at 195-96. See also Urbish v. 127th Judicial District Court, 708 S.W.2d 429, 431-32 (Tex. 1986)("When minors sue, trial courts have the responsibility to protect the minor's best interests. As part of this responsibility, trial courts are authorized to replace next friends and attorneys when it appears to the court that either has an interest adverse to the minor. The trial court's decision is within its discretion. When deciding whether to replace a next friend or attorney, trial courts should consider only the minor's best interest; the interest of the next friend or the attorney are irrelevant"); Lee v. Gucker, 16 Misc. 2d 346, 186 N.Y.S. 2d 700, 702 (1959) (where guardian ad litem refuses to accept settlement offer in best interest of minor plaintiff, court has power to remove guardian ad litem in order to protect interests of infant); State ex rel. Hurd v. Davis, 226 Ind. 526, 534, 82 N.E.2d 82, 86 (1948) ("But no duty is cast upon the court sua sponte to examine minutely as to the competency or responsibility of the next friend. If after the parties are before the court, either by voluntary appearance or as a result of the service of process, incompetency or irresponsibility of the next friend is established in a legal way, the court may remove her and permit a suitable person to be substituted, and this must be done 'without prejudice to the progress of the action.'").
The English courts have also had opportunity to discuss the problem of the next friend who fails to act in the interest of the minor he or she represents. In Ward v. Ward, 3 Mer. 706, 36 E.R. 271 (1813), Lord Chancellor Eldon wrote:
"The court will change the next friend of an infant, if he will not proceed in the cause; or it must be submitted to the Court, whether it is a proper cause to go on with. Certainly a solicitor ought not to attach without orders from his client; but if that client is next friend of an infant, and the solicitor regularly takes that step in course of process, and the next friend comes here (as in this instance he did) and moves to discharge it, it is a question, whether the better course is not to refer it to the Master, to see if it is fit, that the next friend should continue so any longer."
In Russell v. Sharpe, 1 Jac. & W. 483, 37 E.R. 452 (1820), the court wrote:
"If there be any thing wrong, the next friend must be looked to. If the next friend, or the guardian of an infant does not do his duty, or if any other sufficient ground be made out, the Court will allow him to be removed; but as long as he continues, he is considered responsible."
In Dupuy v. Welsford, 42 L.T. 730, 28 W.R. 762 (1880), Vice Chancellor Bacon wrote:
"I am surprised to hear such an argument as that which has been addressed to me on behalf of the next friend. I thought it was one of the rights of the Queen's subjects to have a suit prosecuted to the fullest extent allowed by law. In
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