Opinion
33972.
DECIDED MARCH 21, 1952.
Petition to change name; from Sumter Superior Court — Judge Rees. December 13, 1951.
Smith Undercofler, for plaintiffs.
Claude N. Morris, for defendants.
Proceedings instituted in the superior court, seeking a change of name, by a minor 16 years of age, acting on her own initiative, written objections thereto being interposed by the guardian of such minor, which proceedings were amended by her so as to proceed in the name of the minor by a person sui juris as next friend, were erroneously dismissed by the court on the ground that the time the minor filed the petition to change her name she had a legal guardian.
DECIDED MARCH 21, 1952.
On April 30, 1951, Dorothy Jo Ann Cook, filed in Sumter Superior Court a verified petition, seeking to have her name changed to Dorothy Jo Ann Carrison, and alleged: that she was a resident of Sumter County, that her full name is Dorothy Jo Ann Cook; that she desires to change her name to Dorothy Jo Ann Carrison for the reason that both of her parents are deceased, and she is living with Mr. and Mrs. D. A. Carrison and family, having lived with them for a year or more, and has accepted them as her parents and they have accepted her into their family as one of their children; that Mr. and Mrs. D. A. Carrison have provided guidance and sustenance for the petitioner and will continue to do so; and that the petitioner and Mr. and Mrs. D. A. Carrison desire that they be more closely identified as child and parents by using the same surname. The petitioner prayed that her petition be granted by the judge of said court, and that her name be changed.
On July 7, 1951, Mrs. W. M. English filed written verified objections to the foregoing proceeding, alleging therein: that the petitioner is an infant 16 years of age, incapable of maintaining such proceeding; that the objector is the legal guardian of such minor; that by virtue of such appointment the petitioner is her child and, under Code § 79-501, she alone as guardian has the authority to petition for such a change of name; that she does not so petition and does not so consent and she objects thereto; that she is the maternal grandmother of this minor, who is the child of her deceased daughter; that "Cook" was "her daughter's married name and it represents a bond between the objector and her granddaughter, Jo Ann Cook, which it would break your objector's heart to destroy"; that "Jo Ann's mother died when Jo Ann was 6 years of age, and that your objector has taken care of her since except for approximately the past year, when at the persuasion and insistence of Mr. and Mrs. D. A. Carrison she has shared her with them"; that, "When she agreed to share her granddaughter with the Carrisons, she did so on the representations of good faith by the Carrisons, which at no time gave her reason to believe that her beloved granddaughter would be weaned away from objector absolutely and completely"; that "Jo Ann in bringing the present act is bowing to the will and desire of the Carrisons aforesaid, and that the same is not her free and voluntary expression"; and that after her granddaughter "signed the petition . . she stated to objector that she did not remember a word set forth in said petition and stated to her grandfather . . that she did not know what to do, and she appeared confused and she was concerned by the displeasure which she would incur of the Carrisons if she did not take this action". The objector prayed that the published notice be declared void, (1) in that there was no compliance with the statute, because petitioner was a minor and the publication put no one on notice as to who was the petitioner's guardian, and the person legally qualified to institute this proceeding in her behalf; (2) that the petition be dismissed because petitioner is a minor of tender age and legally incapable of maintaining this proceeding, and the objector is her legal guardian and the person in whose name this proceeding should have been instituted, and the objector has not consented thereto; (3) that the court refuse to change the name of the petitioner; and (4) that objector have such other and further relief as may be equitable and just.
On December 13, 1951, the petitioner amended her petition "by adding . . to first unnumbered paragraph of said petition the . . words, `by D. A. Carrison as next friend,' so that said paragraph . . will read . . `Dorothy Jo Ann Cook by D. A. Carrison as next friend, brings this petition and shows to the court the following facts.'"
This amendment was allowed on said date, subject to objections. Thereafter, on the same day, the court passed this order: "It appearing that Mrs. W. M. English was the legal guardian of petitioner at the time of the filing of the petition, same is hereby dismissed." To this ruling and order the petitioner, by said next friend, excepted.
The petition was brought under the Code of 1933 and the provisions of the act of 1943 (Ga. L. 1943, p. 260), changing the law relative to the procedure as to change of name by persons petitioning the court therefor as set forth in Code (Ann. Supp.) § 79-501, and Code § 79-502. The law as it now stands provides that "Any person desirous of changing his or her name and the names of his or her children" may present a verified petition to the superior court of the county of his or her residence, "setting forth fully and particularly the reason why such change is asked," which shall be properly docketed, and "shall be acted on by the presiding judge any time at or after the second term following its filing." Said statute also provides for the publication of notice and sets out the contents thereof, including the right of any interested or affected party to appear therein and file objections to the granting of the petition; and, if no such objection is so filed, the court shall proceed to hear and determine all matters raised by the petition, and to render final judgment or decree thereupon. Upon the filing of this petition here and publication of notice, there were interposed, within the proper time, written and verified objections to the granting of the prayers of the petition, the same being made by Mrs. W. M. English, setting forth that the petitioner was a minor 16 years of age, that the objector was her legally appointed guardian; and that the objector had not given her consent to the filing of the petition, but was opposed thereto. The guardian also set up that, by virtue of her appointment — the petitioner being a child — under Code § 79-501 she alone as guardian had authority to petition for the change of her granddaughter's name. The objector prayed that the petition be denied. The court dismissed the petition on the ground that it appeared that "Mrs. W. M. English was the legal guardian of petitioner at the time of the filing of the petition."
It is urged by the objecting guardian that the action of the court in dismissing the petition was correct, in that a minor acting on her own initiative is without authority to commence proceedings in the superior court, seeking to change her name, and such action is void. The question presented is whether a petition, seeking to change a name, brought by a minor, 16 years of age, in her own name, which was later amended to add a person sui juris as next friend, is legally instituted and proceeding properly, where, at the time it was filed, the minor petitioning had a legal guardian.
Code § 3-115 provides that legal proceedings commenced by an infant alone "shall not be void," although defective in wanting a guardian or next friend, and that the same may be amended. The petition may be amended to proceed in the name of a person sui juris as next friend. Levy v. McPhail, 33 Ga. App. 784 ( 127 S.E. 793).
We are of the opinion that the petition of the minor, while improperly brought by her, was not subject to dismissal where at the time the same had been amended so as to proceed by next friend, such next friend not being the minor's guardian, even though when the petition was filed the minor had a legal guardian. See Pardue Medicine Co. v. Pardue, 194 Ga. 516 (4) ( 22 S.E.2d 143).
It follows that the court erred in dismissing the petition on the ground that, at the time the petition was filed by the minor, who was 16 years old, she had a legal guardian. It was proper for the court to allow the amendment permitting this petition, with the issue formed by the objections interposed thereto by the guardian, to proceed in the name of the petitioner by next friend. The court should not have dismissed this petition, but should have proceeded to act upon the issue formed by such objections.
The court did not pass upon whether or not this minor is entitled to have her name changed as she asks, but dismissed the petition without determining the merits of this proceeding, and erred in so dismissing the petition.
Judgment reversed. Townsend and Carlisle, JJ., concur.