Nebraska § 25-307 - Suit by infant, guardian, or next friend; exception; substitution by court.

§ 25-307. Suit by infant, guardian, or next friend; exception; substitution by court.

Except as provided by the Nebraska Probate Code, section 43-104.05, and sections 43-4801 to 43-4812, the action of an infant shall be commenced, maintained, and prosecuted by his or her guardian or next friend. Such actions may be dismissed with or without prejudice by the guardian or next friend only with approval of the court. When the action is commenced by his or her next friend, the court has power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian of the infant, or any person, as the next friend. Any action taken pursuant to this section shall be binding upon the infant.

1. Guardian or next friend

2. Miscellaneous

1. Guardian or next friend

Trial court has power, for cause, to substitute next friend in place of guardian. Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959).

Next friend may be incompetent to testify to transaction with deceased person. Fincham v. Mueller, 166 Neb. 376, 89 N.W.2d 137 (1958).

Minor should be represented by guardian ad litem or a next friend. Cass v. Pense, 155 Neb. 792, 54 N.W.2d 68 (1952).

Where infants have been disinherited or deprived of valuable property rights by will, near relative or other person interested in their welfare may institute proceedings as next friend, to contest will, negotiate for compromise, and execute contract of settlement for infants' benefit, and such contract, if approved by court, is binding on infants and all parties thereto. In re Shierman's Estate, 129 Neb. 230, 261 N.W. 155 (1935).

Under authority hereof, guardian or next friend might sue to protect rights of minor cestui que trust as against testamentary trustee. In re Frerichs' Estate, 120 Neb. 462, 233 N.W. 456 (1930).

Intervention by infants, through next friend, in probate proceedings is authorized hereunder; appointment of guardian ad litem is not required. In re Bayer's Estate, 116 Neb. 670, 218 N.W. 746 (1928).

This section is not in derogation of right of next friend to maintain action on behalf of one incapable of conducting his own affairs through age or weakness. Stephan v. Prairie Life Ins. Co., 113 Neb. 469, 203 N.W. 626 (1925).

Infants have a right to sue by guardian or next friend to recover damages for injuries due to tortious acts. Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903).

Next friend may bring suit for an insane party. Wager v. Wagoner, 53 Neb. 511, 73 N.W. 937 (1898).

Where seventeen-year-old minor brought suit by next friend, as authorized by law, for injunction against enforcement of statute requiring parents' consent for abortion, motion for appointment of guardian ad litem was denied. Doe v. Exon, 416 F.Supp. 716 (D. Neb. 1976).

2. Miscellaneous

If a minor lacks the capacity to bring an action, the court acquires no jurisdiction over the matter. Carlos H. v. Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (2012).

This section recognizes the common law that an infant lacks the legal capacity to sue. Carlos H. v. Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (2012).

Owner of life estate in portion of larger tract may maintain partition against cotenant holding fee simple. Nitz v. Widman, 106 Neb. 736, 184 N.W. 172 (1921).

One for whom a conservator has been appointed possesses the power to sue in his own name. Rogers v. Bates, 431 F.2d 16 (8th Cir. 1970).