Fuller v. Smith

The opinion of the court was delivered by Royos, J.

This was an action of audita querela, brought to set aside and vacate a judgment of a justice of the peace in favor *254 of the defendant and against the complainant. The case shows that at the time the writ was served upon the complainant, and the trial had which resulted in the judgment sought to be vacated, he was a minor; that no guardian of the complainant had ever been appointed ; that no guardian ad litem was appointed by the justice on said trial; and that the question of the minority of the complainant was not raised before the justice at all during the trial. It further appeared that upon the request of the officer who served the writ in favor of the defendant against the complainant, Willard Fuller, the father of the complainant, became bail for him by indorsing his name upon the back of the writ; that the said Willard was present at the trial, and testified as a witness upon material points in the case, and that he attended as such witness at the suggestion of the counsel for the complainant.; that he assisted his son and his counsel in the impanneling of the jury, and was present during the entire trial, and interested himself in the case to its close; and he testified that he should have taken an appeal to the County Court if he had not, known that his son was under twenty-one years of age at the time of the trial.

The question presented is, whether, upon the above facts, the judgment sought to be vacated is a valid, binding judgment, or whether it is voidable by the complainant. It is well settled that an infant is legally incapable of appearing for himself and defending his suit in court, or of appointing an attorney to appear and defend for him; and such an appearance or defence is not, in contemplation of law, binding, because the infant is deemed not to have had his day in court. But where the party who is legally competent to appear in behalf of the infant has notice of the pendency of the suit, and opportunity to appear and defend the same, and actually does appear and participate in the defence, the infant has his day in court, and has opportunity to make defence by one having legal capacity to make it. Where a guardian ad litem is appointed for an infant, the appointment should appear of record. But the appearance in, and defence of, the suit by the natural guardian, need not be made a matter of record, and may be shown by parol. The cases of Priest v. Hamilton, 2 *255 Tyler, 44 , and Wrisley & Wrisley v. Kenyon, 28 Vt. 5 , are full authorities in support of both of these propositions. See also 1 Am. Lead. Gas. 265, marginal paging, and cases there cited. Judgment affirmed.