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Supreme Court Rules

Section/Rule:52.02
Subject: Rule 52 - Rules of Civil Procedure - Rules Governing Civil Procedure in the Circuit Courts - Parties Publication / Adopted Date:April 21, 1972
Topic:Civil Actions By and Against Minors and Mentally or Physically InfirmRevised / Effective Date:January 1, 1994


52.02. Civil Actions By and Against Minors and Mentally or Physically Infirm

(a) Civil Actions by Minors, Prosecuted by Whom. Civil actions by minors may be commenced and prosecuted only by a duly appointed guardian of such minor or, if there is no such guardian, by a next friend appointed in such civil action; if asserted by counterclaim, cross-claim or third party pleadings, such civil action may only be prosecuted by a duly appointed guardian of such minor or, if there is no such guardian, by a guardian ad litem appointed for such civil action.

(b) Next Friend, by Whom Appointed. The appointment of a next friend for a minor shall be made by the judge of the court in which the civil action is intended to be brought, or by the clerk thereof.

(c) How Appointed. Such appointment shall be made on the petition in writing of such minor if of the age of fourteen years and the written consent of the person proposed to be next friend. If such minor be under the age of fourteen years, the appointment of a next friend may be made upon the written application of a relative or friend of the minor, in which case a notice thereof must be given to the person with whom such minor resides.

(d) Petition and Appointment to be Filed Before Further Proceedings. The petition for the appointment of a next friend, the written consent of the person proposed to be next friend, and the order of appointment, shall be filed in the office of the clerk of the court where the civil action is proposed to be brought before any proceedings shall be had in the cause.

(e) Civil Actions Against Minors Not to Proceed Without Guardian. After the commencement of a civil action against a minor defendant, and the service of process upon him, the civil action shall not be prosecuted any further until a guardian or guardian ad litem for such minor defendant be appointed, except for such discovery proceedings as may be necessary to determine whether a defendant is a minor or has a duly appointed guardian.

(f) Appointment of Guardian Ad Litem. The appointment of a guardian ad litem shall be made by the court in which the civil action is pending upon the written request of the minor defendant, if of the age of fourteen years or more, or, if such minor be under said age, on the written request of a relative or friend of the minor, and on the written consent of any competent person proposed as guardian ad litem. Such request shall be filed in the office of the clerk of the court before any answer by such minor shall be filed.

(g) Guardian Ad Litem, When Appointed. If such minor defendant neglect, for one day after the expiration of the time within which the minor defendant is summoned to appear to the suit to procure the appointment of a guardian ad litem to defend the civil action, the court shall appoint some competent person to be guardian ad litem for such minor in the defense of such civil action.

(h) Next Friend or Guardian Ad Litem to Give Bond.

(i) Guardian and Next Friend Liable for Costs. The guardian or next friend of any minor who commences or prosecutes a civil action shall be responsible for the costs thereof, unless such minor be permitted by the court to sue as a poor person, as provided by law.

(j) Guardian Ad Litem Liable for Costs in Case of Misconduct. No person appointed guardian ad litem for a minor, for the purpose of defending a civil action against such minor, shall be personally liable for the costs of such civil action, unless specially charged by the order of the court for some personal misconduct in said cause.

(k) Next Friend or Guardian Ad Litem for Mentally or Physically Infirm. Whenever it shall be suggested or affirmatively appear to the court that any person not having a duly appointed guardian is incapable by reason of mental or physical infirmity of instituting suit or of properly caring for the person's own interests in any litigation brought by or against such person, the court shall inquire into the person's mental or physical condition for the purpose of the particular litigation and shall hear and determine such issue. If it is found to be proper for the protection of the person, the court may appoint a next friend or guardian ad litem for said person for the purpose of the particular litigation.

(l) Next Friend to Defend Counterclaim. A next friend shall also defend any counterclaim asserted against such minor or mentally or physically infirm person, except, upon application, the court shall appoint a guardian ad litem to defend such counterclaim.

(m) Failure to Appoint Next Friend or Guardian Ad Litem. Failure to appoint a next friend or guardian ad litem for a minor or a mentally or physically infirm person shall not invalidate the proceedings if the court finds that the interests of the minor or the mentally or physically infirm person were adequately protected.

(n) Statutes Governing Powers and Duties. The powers and duties of the next friend, guardian and guardian ad litem, and of the courts in respect to minors and incompetents shall be exercised in accordance with the provisions of the Revised Statutes of Missouri including, but not limited to, Sections 507.182, 507.184, 507.186 and 507.188.

(Adopted April 21, 1972, eff. Dec. 1, 1972. Amended June 5, 1980, eff. Jan. 1, 1981; June 14, 1988, eff. Jan. 1, 1989; Sept. 28, 1993, eff. Jan. 1, 1994.)

COMMITTEE NOTE - 1974