Robert M. Hood, by James W. Hood, his next friend, brought this action against Mahlon IT. Pearson, to recover the possession of a horse and wagon.
Pearson answered the complaint by a general denial. Before trial, the court, on motion, ordered “that James W. Hood be removed as next friend,” and also ordered “the plaintiff to substitute a competent and responsible-person as next friend, within thirty days,” and. continued the cause.
The plaintiff failed to substitute a competent and responsible person as next Mend, under the order, but, at the next term of the court, moved, upon a proper showing, to he allowed to prosecute the ease as a poor person. On failure to comply with the order of the court to substitute another person as next friend, the court overruled the motion to allow the appellant to prosecute the ease as a poor person, and thereupon dismissed the suit; to all of which the appellant reserved his exceptions. Upon the dismissal of the suit, the court rendered judgment against the appellant, for *370the return of the property to the appellee, and, in default thereof, for one hundred and fifty dollars and costs of suit. On appeal, and assignments of error in this court, the following questions are discussed:
1. The appellant insists that the record should show, affirmatively, the grounds upon which the court removed the next friend of the infant.
We think not. Section 11 of the code of practice gives the court the power, in express terms, to remove a next friend. We must presume the ruling to be right. If the ruling was wrong, it was for the appellant to make the error appear of record. Not having done so he can not question the decision.
2. Has an infant, on a proper case made, the right to prosecute a suit as a poor person, without suing by a next friend ?
The sections of the statute bearing upon this question are as follows:
“ Sec. 10. When an infant shall have a right of action, such infant shall be entitled to maintain suit thereon, and the same shall not be delayed or deferred on account of such infant not being of full age.
“ Sec. 11. Before any process shall be issued in the name of an infant, who is a sole plaintiff, a competent and responsible person shall consent in writing to appear, as the next friend of such infant, and such next friend shall be responsible for the costs of such action, and thereupon process shall issue as in other cases; but where it shall appear to the court that such next friend is incompetent, or irresponsible, the court may remove him, and permit some suitable person to be substituted, without prejudice to the progress of the action.
“ Sec. 15. Any poor person, not having sufficient means to prosecute or defend an action, may apply to the court in which the action is inteuded to be .brought, or ia *371pending, for leave to prosecute or defend, as a poorperson. The court, if satisfied that such person has not sufficient means to prosecute or defend the action, shall admit the applicant to prosecute or defend as a poor person, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defence, who shall do their duty therein without taking any fee or reward therefor from such poor person.” 2 R. S. 1876, pp. 37, 38.
It is insisted by the appellee, that an infant must sue by a next friend, according to section 11, supra, and can not sue as a poor person, under section 15, supra.
Such a construction would exclude an infant from suing as a poor person, unless he secured the costs by a next friend, while it would admit an adult to sue as a poor person, without giving security for costs; indeed, it would allow an adult to sue at the public expense, and deny the same right to an infant. We can not suppose that the Legislature meant any such result. One of the main reasons why an infant must sue by a next friend is, that the infant is not liable for costs ; but, when no costs are to be paid by the infant, this reason entirely ceases. Of course, the next friend must see as to the propriety of bringing the suit, and, if brought, see that it is conducted with prudence and circumspection; but, when an attorney has been assigned by the court to prosecute the case for the infant, these reasons also cease,, for it must be supposed that an attoi’ney is as competent to advise as to the propriety of bringing a suit, and also as to its manner of prosecution, as a next friend. And we can see no necessity for a next friend, when the statute provides the infant with an attorney. In this view we do no violence to a fair construction of section 11. The two sections must be construed together. The construction insisted upon by the appellee would entirely overrule section 15, as to infants, while the *372view we.take does not infringe upon section 11, but upholds both sections.- Taken together, they plainly mean that, where an infant has means to prosecute his suit, he must sue by a next friend; and that when he has no such means he may sue as a .poor person, and have an attorney assigned to prosecute the case for him. The poverty of the infant might be the cause why he could not procure a next friend to stand for his costs. In such case, if he was denied the right to sue as a poor person, he could not sue at all — a consequence contrary to justice, against the letter of section 10, supr’a, and inimical to the spirit of our institutions; one certainly to be avoided if possible.
If we are right in this view, the court erred in denying the right of the appellant to sue as a poor person, and in dismissing his case.
The judgment is revei’sed, at the costs of the appellee, and the cause is remanded for further proceedings according to this opinion.