Broyhill v. Dawson

• Decision Date: 10 June 1937
• Citation: 191 S.E. 779
• Parties: BROYHILL. v. DAWSON.
• Court: Virginia Supreme Court

191 S.E. 779

BROYHILL.

v.DAWSON.

Supreme Court of Appeals of Virginia.

June 10, 1937.

Error to Circuit Court of City of Hopewell.

Action by Thomas Broyhill against Charles Dawson, wherein Charles Dawson, an infant, by his next friend, B. E. Dawson, moved to quash an execution on an adverse judgment. To review an adverse judgment, Thomas Broyhill brings error.

Affirmed.

Argued before CAMPBELL, C. J, and BOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Archer L. Jones, of Hopewell, for plaintiff in error.

White & Temple, of Petersburg, for defendant in error.

BROWNING, Justice.

The facts in the case are amply and tersely stated in the brief of the defendant in error. We quote them:

"On September 26, 1934, Thomas Broyhill recovered in the Circuit Court of the City of Hopewell, Virginia, a judgment against Charles Dawson; on June 18, 1935, an execution was issued on this judgment, directed to the sergeant of the city of Petersburg; on August 20, 1935, Charles Dawson, an infant, by his next friend, B. E. Dawson, moved the Circuit Court of the city of Hopewell to quash this execution on the ground that the judgment on which it was issued was void, having been rendered against him when he was but eighteen years old, and without the appointment of a guardian ad litem. Thomas Broyhill filed an answer to this motion in which he contended: (1) An inspection of the record of the proceedings in which the judgment against Dawson was rendered showed the judgment to be valid; (2) No evidence dehors the record could be introduced to contradict the record; (3) The court in pronouncing judgment necessarily found as a fact that Dawson was over twenty-one years old; (4) Dawson was estopped to assert that he was under twenty-one years of age. All matters of law and fact were submitted to the court for decision without the intervention of a jury, and the order here complained of was entered quashing the execution."

The motion to quash the execution, as has been already said, is based on the ground that Charles Dawson, the defendant in the original suit, was an infant but eighteen years old at the time of the rendition of the judgment, and that no guardian ad litem had been appointed to represent his interests.

It does not appear on the face of the record of the original suit that the defendant was an infant. His true age, however, is not denied by the plaintiff in error.

The evidence was introduced and received by the trial court proving the age of the defendant and the fact that no guardian ad litem had been appointed for him in that suit. There was also evidence in behalf of the plaintiff in error that the defendant, Dawson, had said that he was twenty-one years old at the time of the accident, which was involved in the suit; that he swore in making application for a marriage license that he was twenty-one years old, which was before the judgment was had against him in the suit referred to.

This testimony was denied by Dawson, except that relating to the application for his marriage license.

As the judgment of the court was in Dawson's favor, his testimony, which conflicts with that of his adversary, must be accepted.

The important question which is here presented, and which must be determined, is whether an infant, under the circumstances related, who moves to quash an execution on a judgment obtained under the conditions present, will be permitted by the court to establish the fact of his infancy, where the record in the case, in which the judgment was rendered, is silent on that feature. Where the record, as in this case, does not show the appointment of a guardian ad litem, there is no presumption that such appointment was made.

The following cases afford authority for this proposition: Kanter v. Holland, 154 Va. 120, 152 S.E. 328; Langston v. Bassette, 104 Va. 47, 51 S.E. 218; Catron v. Bostic, 123 Va. 355, 96 S.E. 845.

In the case of Kanter v. Holland, supra, this court said: "It is well settled in this jurisdiction that, unless the record affirmatively shows the appointment of a guardian ad litem to defend the interests of the infant, such appointment will not be presumed as a matter of law. * * *

"Whatever may be the rule of decision elsewhere, we are of opinion that the law in Virginia is that a personal judgment rendered against an infant for whom no guardian ad litem has been appointed is void. * * *

"As we are of opinion that the rendition of the judgment against the defendant in the action at law was a nullity, we are further of opinion that it was amenable to collateral attack, and that a motion to quash the execution was a proper procedure."

The motion to quash an execution is provided for by section 6499 of the Code of Virginia 1936. An annotation under that section states: "It is well settled that a motion to quash is the proper remedy where an execution is irregular and has been issued without authority of law. Sutton v. Marye, 81 Va. 329; Snavely v. Harkrader, 30 Grat. (71 Va.) 487."

The plaintiff in error further contends that because the record in the suit in which the judgment was rendered is silent as to the age of the defendant therein, and because judgment was given against him, the court thereby adjudicated that he was over twenty-one years of age, and that there is also a conclusive presumption of that fact.

It is forcefully contended by the defendant in error that the court is not compelled to "blindly presume that the age of the defendant was over twenty-one because judgment was rendered and no guardian ad litem was appointed, * * * that there is no principle of law or reason that will justify a court in refusing to ascertain whether the court entering the judgment had jurisdiction to do so."

In our opinion the pivotal question, in this case, to which we have adverted is settled in this state by the decisions in Kan ter v. Holland, supra, and Beck v. Semones' Adm'r, 145 Va. 429, 134 S.E. 677, 680.

The plaintiff in error assails the decision of the former case, as authority in the case in judgment, because in that case the parties stipulated that it was a fact that at the time of the trial and entry of judgment in that case the defendant was an infant and that the record failed to disclose that a guardian ad litem was appointed for him. It is also stated in the opinion that the defendant testified upon the trial that he was nineteen years of age. These circumstances establish a distinction between the two cases, so far as their facts are concerned, but such distinction does not impair the. principle announced in the Kanter Case to the effect that a personal judgment rendered against an infant for whom no guardian ad litem was appointed is void.

The plaintiff in error emphasizes and stresses the rule that the record is conclusively presumed to speak the truth and that the law does not permit the introduction of evidence dehors the record to overthrow that which, for reason of public policy, it treats as absolute verity. This is very well and it is sound, but it can have no application to a case in which there has been a judgment which this court...