Opinion
36938
September 19, 1935
Present, All the Justices.
INFANTS — Suit to Annul Marriage — Remand of Cause Not Proceeded in by Next Friend — Case at Bar. — In the instant case, a suit by an infant seeking to annul her marriage, relief was denied because of the insufficiency of the evidence. The cause was instituted and prosecuted to final decree in the name of the infant instead of by her next friend, although section 5331 of the Code of 1930 provides that any minor entitled to sue may do so by his next friend. Because the failure to institute and prosecute the suit by a next friend cast substantial doubt on the validity of the decree, the Supreme Court of Appeals remanded the cause with direction that the decree be vacated and the cause proceeded in by the next friend of the infant complainant.
Appeal from a decree of the Circuit Court of Wise county. Decree for defendant. Complainant appeals.
Reversed and remanded.
The opinion states the case.
D. F. Kennedy, for the appellant.
No appearance for the appellee.
The appellant, who was the complainant in the court below, filed her bill against the defendant asking the court to annul the marriage which had taken place between them. Upon a hearing the chancellor denied her relief because of the insufficiency of the evidence. We are asked to review the decree.
It appears from the bill of complaint and the evidence that the complainant is under the age of twenty-one years and that the cause was instituted and prosecuted to final decree in the name of the infant instead of by her next friend. It is provided by Code, sec. 5331, that "any minor entitled to sue may do so by his next friend." The failure to institute and prosecute the suit by a next friend casts substantial doubt on the validity of the decree. For that reason we are remanding the cause to the lower court with direction that the decree be vacated and the cause proceeded in by the next friend of the infant complainant to be assigned by the court should it be deemed advisable. Wilson wife v. Smith, 22 Gratt. (63 Va.) 493; Garland v. Norfolk Nat. Bank, 156 Va. 653, 158 S.E. 888. Otherwise the cause should be dismissed by the trial court for the reason above stated.
Reversed and remanded.