Dixon v. Gries

California Supreme Court Mar 20, 1895 No. No 18387Published

Before: Haynes

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Holding. The court held that a guardian's appointment does not vest the cause of action in the guardian, and an action involving an insane person must be prosecuted in the name of the incompetent person by their guardian. Consequently, the judgment was reversed and the case remanded for the complaint and proceedings to be amended to reflect the proper party.

Issues

Whether a guardian's appointment vests the cause of action in the guardian such that they may be substituted as the sole plaintiff.
Whether a complaint that fails to state a cause of action in the named plaintiff is subject to a general demurrer.
Whether an action involving an incompetent person must be dismissed if the guardian was erroneously substituted as the sole plaintiff.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“His appointment as guardian did not vest the cause of action in him.”

“The suit should have been prosecuted in the name of H. S. Dixon, an insane person, by J. R. Dixon, his guardian.”

“It is not sufficient that the complaint states facts showing a cause of action in somebody; it must show a cause of action in the plaintiff, or a general demurrer will lie.”

Synopsis

Parties—Substitution of Guardian of Insane Plaintiff.—Where, after the commencement of an action, the plaintiff has become insane, it is error to substitute his guardian as sole plaintiff, but the suit should be prosecuted in the name of the plaintiff, as an insane person, by his guardian.

Id.—Effect of Appointment of Guardian.—The appointment of a guardian of an insane person does not vest in him a cause of action in favor of the insane person, nor deprive the latter of his right or property therein.

Id.—Demurrer to Complaint—Support of Judgment.—The complaint must show a cause of action in the plaintiff, and, if it does not, a general demurrer will lie, and a judgment in favor of the plaintiff cannot be supported.

Id.—Order Substituting Guardian—Dismissal of Action.—An order substituting the guardian of an insane plaintiff, though erroneous, is not intended as a dismissal of the action as to the incompetent plaintiff, and should not be given that effect.

Haynes, C. This action was originally brought by H. S. Dixon, to foreclose a mortgage [made by Henry Gries. The other defendants were subsequent grantees of the mortgaged premises. After the commencement of the action the plaintiff, H. S. Dixon, became insane, and J. R. Dixon was appointed the guardian of his person and estate, and, upon motion, the court made the following order: “It is ordered that J. R. Dixon, as [507]guardian of the person and estate of H. S. Dixon, plaintiff herein, be and he is hereby substituted as plaintiff herein, in the name, place, and stead of H. S. Dixon.”

Thereupon a second amended complaint was filed, entitled “ J. R. Dixon, as guardian of the person and estate of H. S. Dixon, an insane person, v. Henry Gries, S. N. Griffith, and Antonio J. Gardozo.”

To this complaint a general demurrer was filed by defendants and overruled by the court. This complaint contained no averment of the insanity of H. S. Dixon, nor of the appointment of a guardian. At the conclusion of the trial the plaintiff was permitted to file amendments to said second amended complaint, to conform to the proof, and amendments were thereupon filed alleging such insanity and the appointment of the plaintiff as guardian, and thereupon findings were made for plaintiff, and a decree entered foreclosing the mortgage.

Defendants appeal from the judgment upon the judgment-roll.

The demurrer should have been sustained to the second amended complaint; nor were all its defects cured by the amendments to make it conform to the proof. The first error was in the order substituting the guardian as plaintiff. His appointment as guardian did not vest the cause of action in him. It is not sufficient that the complaint states facts showing a cause of action in somebody; it must show a cause of action in the plaintiff, or a general demurrer will lie. H. S. Dixon was not deprived of his right or property in the cause of action by his insanity, nor did it vest in his guardian upon his appointment. The suit should have been prosecuted in the name of H. S. Dixon, an insane person, by J. R. Dixon, his guardian. (See Fox v. Minor, 32 Cal. 116; 91 Am. Dec. 566; Wilson v. Wilson, 36 Cal. 451; 95 Am. Dec. 194; Karr v. Parks, 44 Cal. 48; Emeric v. Alvarado, 64 Cal. 593; Justice v. Ott, 87 Cal. 530; O’Shea v. Wilkinson, 95 Cal. 454.) Therefore, neither the complaint, [508]

Dixon v. Gries

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