[51 Del. 598] William G. Bush, III, and Harrison F. Turner, both of Dover, for plaintiff.
Houston Wilson, of Georgetown, for defendant.
Plaintiff, Nelson Cohee, Jr., is a minor who was injured in a collision between his bicycle and an automobile driven by the defendant, on September 11, 1956. Suit was filed for the infant by his next friend, Nelson Cohee, Sr., on September 10, 1957. There was no judicial appointment of a next friend. A request for judicial appointment of the next friend was made at the argument on this motion, on April 17, 1959. This request was opposed by defendant.
Defendant filed his motion to quash and to dismiss the complaint for reasons which may be summarized as follows: (1) That an infant cannot sue in Delaware by his
next friend; and (2) even if he can sue by his next friend, he cannot start suit until the next friend is duly appointed by this court.
In support of his first ground, defendant argues as follows: That an infant could not sue by his next friend at common law. This situation was corrected by two English statutes, Westminster 1, c. 48, and Westminster 2, c. 15. Woolley, Delaware Practice, § 125. It cannot be readily determined whether these statutes became a part of our common law. At any rate, until the Revised Code of Delaware was approved by our Legislature in 1953, we had a statute which permitted a suit by a next friend. See Rev.Code Del.1935, par. 4674, and Rev.Code Del.1915, par. 4196. When the Code was adopted in 1953, paragraph 4674 (Rev.Code Del.1935), which permitted a suit by a next friend, was omitted. This omission leaves this State without a statute on the subject, therefore, since the right to sue by [51 Del. 599] a next friend did not exist at common law; and since we have no statute presently, a 'next friend' cannot be a proper representative of the infant. This fact is true, defendant claims, even though Rule 17(c)  of the Delaware Superior Court Rules, Del.C.Ann., approved January 1, 1948, was in existence when the statute was omitted. Defendant admits that the statute was not omitted inadvertently, but was omitted because it was believed Rule 17(c) covered the subject. He claims, however, that this court had no power to promulgate a rule covering this subject because, historically the power of a court to appoint a 'next friend' as a competent representative of an infant in England and Delaware can only be vested in the court by legislative act. In other words, the defendant claims that this is not a subject that can be dealt with by the court under its rule-making power and that express legislation on the subject is essential.
Assuming, without agreeing with defendant, that his version of the Delaware common law is correct,  nevertheless, I am unable to concur with defendant's argument.
The capacity of a party to sue is procedural and therefore a proper subject for rule of court. Bengtson v. Travelers Indemnity Co., D.C.,132 F.Supp. 512, affirmed 5 Cir., 231 F.2d 263, 265, 266. Rule 17(c), Delaware Superior Court Rules, deals, inter alia, with the capacity of a party to sue. This Rule has the [51 Del. 600] force and effect of a legislative enactment. Associated Transport v. Pusey, 10 Terry 413,118 A.2d 362, 365. The promulgation of the Rule was tantamount to the Legislature itself passing a statute covering the subject. See 10 Del.Code Ann. Sec. 561. 
Defendant next contends that service must be quashed and the action dismissed because the 'next friend' was not appointed by the court before suit was filed.
It has been the practice in this State for the court to appoint a 'next friend' on application by the petition of the infant, or someone on his behalf if he is too young. Flannigan v. Wilmington & N. C. Electric Ry. Co., 2 Pennewill 415,45 A. 346. The statute  in existence prior to the adoption of the Delaware Code in 1953 did not literally require a judicial appointment, [51 Del. 601] but it was nevertheless required by the court. Judge Victor B. Woolley explained it in his treatise on Delaware practice as follows:
'The next friend is not a party to the suit. He is simply a person appointed by the Court to look after the interest of one, who by reason of his legal disability, is unable to look after and manage his own interests. The infant or the person for whose benefit the suit is prosecuted is the real party.'
Logically, the reason for the requirement of a judicial appointment was to protect the infant. The court exercised its discretion in the selection of a next friend, generally giving preference to relatives or other people who would be inclined to champion the rights of the infant.
Rule 17(c), Del.Code Ann., is an exact copy of the same Federal Rule. It, like the statute it eliminated (Rev.Code Del.1935, § 4674), makes no literal requirement that the next friend be appointed by the court. Russick v. Hicks, D.C.Mich.,85 F.Supp. 281, has held that under Rule 17(c), F.R.Civ.P., 28 U.S.C.A., the next friend may on his own initiative institute suit and that a judicial appointment is unnecessary since the court already has supervision over him. See, also, 3 Moore's Federal Practice, 2d Ed., § 17.26. A solution to this case does not require a change in the established practice in Delaware to appoint a next friend by the court. The court must still appoint a next friend.