Opinion
Decided October 12, 1928.
Costs — Liability of next friend before and after infant's majority — Section 11248, General Code.
A next friend, who brings a civil action in the court of common pleas for an infant, becomes liable, under Section 11248, General Code, for the costs in the action which accrue both before and after the infant becomes of age, unless timely application is made to the court to be relieved of that liability.
ERROR: Court of Appeals for Lorain county.
Mr. F.M. Stevens and Mr. C.J. Maple, for plaintiff in error. Messrs. Baird, Vandemark Butler, for defendants in error.
On the 17th of October, 1924, Adelaide Farmer, who was an infant at that time, filed an action at law in the court of common pleas of Lorain county, by George M. Parker, her next friend, and made W.B. Richmond and others, as members of the board of county commissioners of Lorain county, Ohio, defendants. On November 21, 1925, which was before the case came on for trial, said Adelaide Farmer became of full age, but the suit was prosecuted as originally started, and was submitted to the jury on the evidence offered by said plaintiff. At the conclusion of the plaintiff's evidence, upon motion of the defendants, a verdict was directed for the defendants, and a judgment was entered thereon. Error proceedings were then prosecuted in the Court of Appeals of said county, and the judgment of the trial court was reversed and the cause remanded for further proceedings as provided by law.
The case was then retried and submitted to a jury upon all the evidence and the charge of the court, and a verdict was returned in favor of said defendants, and judgment was entered upon the verdict.
Subsequently an execution which was issued for the costs, which amounted to several hundred dollars, was returned by the sheriff unsatisfied; because a motion to retax the costs had been filed by said Parker, the next friend, the sheriff having attempted to recover the costs from him. Upon the hearing of the motion, the trial court took evidence, and at the conclusion of the hearing overruled the motion. The case is now here to reverse that ruling.
From the time the suit was brought until the time it was fully completed no effort was made by Parker to be relieved from the liability for costs which was cast upon him by Section 11248 of the General Code of Ohio. Adelaide Farmer was a nonresident of the county, and after she became of age Parker could have asked the trial court to relieve him from the liability which was cast upon him at the time he filed the suit for her, and it would then have been the duty of said Adelaide Farmer to give security for costs, if ordered to do so by the trial court. No effort was made by Parker to be relieved of this obligation, but, on the contrary, he permitted the suit to be prosecuted and the costs in connection therewith to be incurred.
The same civil code which gave him the right to volunteer as the next friend of Adelaide Farmer, and start the suit, also cast the burden upon him to be responsible for the costs incurred in the suit. The same civil code also gives to the trial court the right to retax the costs and to divide them as the court thinks just and proper.
The court, in this case, after hearing the evidence on the motion to retax the costs, decided that it was not inequitable and unjust to allow Parker to remain liable for the costs of the suit which he started, and from which liability he did not take any steps to be relieved, after said Adelaide Farmer became of age, before termination of the litigation.
The only reason which would justify this court in reversing or modifying the judgment of the trial court would be based on the theory that the trial court abused its discretion in not retaxing the costs as prayed for by Parker, which position we are unable to assume. We are supported in this by the case of Brown v. Bray, 16 C.C. (N.S.), 165, 31 C.D., 468, affirmed without opinion 83 Ohio St. 462, 94 N.E. 1102.
The judgment of the trial court in refusing to retax the costs will therefore be affirmed.
Judgment affirmed.
WASHBURN, P.J., FUNK and PARDEE, JJ., concur.