- (1.) The appellants were substituted in place of the eo nomine plaintiff in a suit instituted in the name of the plaintiff by one of his sons as his next friend on the claim that the plaintiff was of unsound mind. The appellants seek to challenge an appellate decree by which the trial court's decree has been set aside and the suit dismissed.
(2.) The suit was lodged in January, 2001 on the allegation that the plaintiff was of unsound mind and was represented by a son as his next friend. No attempt was made for an adjudication as to whether the plaintiff was of unsound mind. It is not in dispute that there was no previous declaration or finding of any court that the plaintiff was of unsound mind. In the written statement filed by the defendant on or about October 05, 2001 it was categorically asserted that the plaintiff was not of unsound mind. Yet no immediate steps were taken by the next friend of the plaintiff for an adjudication on such score.
(3.) The plaintiff died on or about November 19, 2001 and, as if in a routine manner, the eo nomine plaintiff was substituted by his widow and other heirs including the purported next friend who had carriage of proceedings and pursued the action. In course of the trial court's judgment in support of the decree, it was recorded that no attempt had been made on behalf of the next friend of the original plaintiff or the substituted plaintiffs to demonstrate that the original plaintiff was of unsound mind. Such finding is clear and categorical. Having found thus, the trial court ought to have stopped there and found that the suit was not maintainable. However, the trial court went on to call for evidence on the merits of the disputes.;