Powell v. Gott

1. Practice — Writs or Eiuiok Cop.aiu Yobis_The statutes oí this State have fixed no limitation to writs of error coram ooiws; the writs barred by the statute are those only which are brought to correct errors of law. 2- Ixvaxts. — If a judgment be rendered against an infant defendant who appears by attorney, he may at any time after he arrives at full age set tho same aside, upon motion.

ERROR TO MONTGOMERY CIRCUIT COURT. 1. The first question presented for tho decision of lie court is, whether this proceeding by motion is barred by tbe 8tli section, 7th article, Practice at Law, p. 831. Tlie appearance of an infant by attorney is more than an irregularity — it is error in fact. This section only bars proceedings by motion for irregularity. Irregularity is the transgressing of form or rule of procedure. 1 Tidd’s Pr. 581; 1 Duer & Paine’s Pr. 365; Jacobs’ Law Diet., “ it is the want of adherence to some rule or mode of proceeding, either in omitting what is necessary to be done, or in doing it at an unseasonable time, or in an improper manner.” Here, though a rule of practice has been transgressed, that rule has its foundation in principles of law of a substantial character. The infant has no legal capacity to employ an attorney, or to make a warrant of attorney. His letter of attorney is absolutely void, and not only voidable. It is therefore error in matter of substance, as well as a departure from the rules of practice. That it is error see the following authorities — Knapp v. Crosby, 1 Mass. R.; Arnold v. Sandford, 14 Johns. R. 416 ; Mockey v. Grey, 2 Johns. 192; 1 Tidd’s Pr. 1056 ; Jeffrie v. Robideaux, 3 Mo. R. 33 ; 8 Coke, 58 ; Bacon, Infancy and Age, 617, 618. 3. The question of affirmance or disaf-firmance of this avoidable act, does not arise in this case ; and if it does, the evidence is conclusive on the point, that after reaching his full age, the plaintiff at all times was preparing to resist the enforcement of the defendant’s claim, and did make actual resistance so soon as defendant began to assert his right. The court is referred to the case of Tucker v. Moreland, lO.Peters ; Clamorgan v. Lane, 9 Mo. R. 447, for the law as expounded by this court, on the subject of the affirmance or disaffirmance of a voidable act of an infant. The record shows that Gott had purchased the land of the plaintiff, on execution upon his judgment, and had commenced in 1847, a proceeding to have partition of the land bought, making W. L. Powell defendant, and as soon as this was dene, the plaintiff in error employed counsel to appear for him and set aside the first judgment. At all events, there is no act of affirmance shown on the part of the the plaintiff in error. 3. It was contended below that the plaintiff in error could not take advantage of this erroneous judgment, post plenum, actuatem, and that the question of non-age must be tried by inspection. Por this position 3 Kent, 337, and Bacon’s Abr. title Infancy and Age, and other like authorities are referred to.- These authorities lay down the doctrine that matters of record, fines and recoveries, recognizances, statutes merchant and staple, must be avoided during minority. These authorities and this principle, I insist, do not apply to this case. The examples given are either modes of assurance of real-estate, or matters of record when the parties appear in person and the question of infancy is passed upon, and therefore is a judicial act. In fines and recoveries, it was expressly required by statute, that the courts should see that recognizors should not be under disabilities, so that this matter must have been, in all cases, adjudicated by the courts. But where the parties appeared by attorney, the infant could avoid his act after full age, and the matter be tried per pais. Jacobs’ Law Diet., Infant; 3 Bac. Abr. 584, 597. The appointment of an attorney is not a judicial act, like that of a guardian, aud here lies the distinction. The question of non-age did not come before the court; and as presented to the court now, it is a simple question of fact, and that is, whether at the time of appearance, by attorney, the plaintiff was an infant. In the case of Sandford v. Arnold, 14 Johns, and 2 Rand. 174, the same question as now presented was before the court, and the objection urged below was not suggested, either by counsel or court. In Slian v. Shelbaeh, 1 Dali. 165, and Moore v. McEwen, 5 Serg. & Rawle, 373, this objection was urged but overruled, and the distinction above insisted on, recognized. In the former of these cases the court say that this principle does not apply except to the old actions for conveying and assuring real-estate. 1. The said motion was properly overruled, because it did appear to the court that Powell sought to get rid of Go tt’s judgment against him, on the ground of his infancy, and of a guardian not having been appointed for him, at or before the trial of the action of trespass in which judgment was rendered against him. He had expressed his determination that Gott should not have his land, and had authorized an agent to employ counsel to defend Gott’s suit for partition of the same, but had not authorized any notice to set aside or vacate the judgment, and the motion should have appeared to have been made with his consent or approbation. 8 Stephens’ N. P., title Infant. 2. The motion to set aside the judgment should have been made expressly for the reason that the infant had appearance upon the record by attorney, and not by guardian, which motion should have been verified by the affidavit of said Powell, or at least by some one authorized to act in his behalf in the premises, which was not the case. 3. A judgment or other judicial proceedings against an infant, without the appointment of a guardian, is good and valid till reversed. They are voidable at most and must be avoided in the time and manner prescribed by law. Jeffrie v. Robideaux, 3 Mo. R. 24; also, 1 Pirtle’s Digest; title Infant, Infancy, 521, and cases there cited — and if not so avoided, or if any, even slight acts in pais, in affirmance, or done or suffered, after the infant attains his majority, the voidable act or proceeding is affirmed. In this case, no effort to set aside the judgment of G-ott was made or attempted by Powell, or any one in his behalf, till more than two years after, according to his mother’s evidence, he had attained his majority. 4. It is not pretended by plaintiff in error, that he was not liable in the suit of trespass against him ; nor that he was not legally and properly defended — indeed, it appears by the evidence of his mother, his natural guardian, that he was so defended by counsel employed by herself as wrell as by a volunteer attorney. The only error com- . plained of on the motion is, that the Circuit Court omitted the formality of appointing a guardian ad litem on the trial; and for this omission defendant in error submits that the motion should have been made within five years after the rendition of the judgment, and not after, and cites article 7, section 8, title Practice at Law, Rev. Stat. The motion in question -was not filed till after the expiration of that period, and there being no saving in favor of infants, or others laboring under disability, the said irregularity is cured. 5. The motion in this case, admitting that the same was properly made and authenticated, ■which defendant denies, is a proceeding of error ooram vobis — Jacobs’ Law Diet, title Infant, ch. 3 — and analogous to a writ of error from a superior to an inferior court; and all writs of error are required to bo brought within five years after the rendition of the judgment or decision from which they are taken, and not thereafter — Practice in Supreme Court, Rev. Stat. p. 901, § 3 — and this, defendant insists, is sufficient to sustain the decision of the Circuit Court in dismissing the motion.