Grogan v. Spaulding

• Decision Date: 01 February 1913
• Citation: 155 S.W. 1014
• Parties: GROGAN v. SPAULDING et al.
• Court: Texas Court of Appeals

155 S.W. 1014

GROGAN v. SPAULDING et al.

Court of Civil Appeals of Texas. Ft. Worth.

February 1, 1913.

On Appellant's Motion for Rehearing March 8, 1913.

On Appellees' Motion for Rehearing April 12, 1913.

Appeal from District Court, Taylor County; T. L. Blanton, Judge.

Action by P. T. Grogan, Jr., against John Spaulding and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. M. Wagstaff, of Abilene, Theo. Mack, of Ft. Worth, and J. F. Cunningham, of Abilene, for appellant. Kirby & Davidson, of Abilene, for appellees.

SPEER, J.

P. T. Grogan, Jr., sues John Spaulding and Will Spaulding, composing the firm of Spaulding Bros., to recover a sum of money paid to the defendants for a certain automobile; the petition alleging that at the time of said payment the plaintiff was a minor, and that on reaching his majority he had promptly elected to rescind the purchase.

The defendants answered generally, and specially by a plea of res adjudicata. A trial before the court resulted in a judgment for the defendants, and the plaintiff has appealed.

A single assignment is presented, raising the sole question that the court erred in rendering judgment for the appellees upon the undisputed evidence to the effect that at the time appellant paid the consideration for the automobile he was a minor, and that on arriving at his majority he had elected to rescind the contract of purchase, tendering the machine back to the appellees; and, further, that at the time appellant was sued by appellees for the purchase money of the automobile he was yet a minor. It is also shown that in the suit by appellees against appellant no guardian ad litem was appointed by the court, but an appeal was taken by the minor, and the judgment against him was affirmed by this court, which judgment has never in any manner been vacated or set aside. Appellant invokes the familiar rule that a minor, upon reaching his majority, may elect to rescind his contract, made during his minority, and recover back the consideration paid. He insists that he is in no worse position by reason of the demand against him having been reduced to judgment during his minority than if he had paid the same voluntarily; that in either instance he could recover the money paid. But we cannot agree to this contention. Infants are permitted to sue and be sued, and are as much bound by the judgment or decree as if they were adults. Cannon v. Hemphill, 7 Tex. 184; 27 Cen. Dig. tit. Infants, § 321.

Article 1942, Revised Statutes 1911, makes it the duty of the court, in case an infant defendant has no regular guardian, to appoint a guardian ad litem to defend for him, and the failure of the court to make such appointment is an error for which the judgment rendered against such minor will be reversed; but it has never been held that the judgment is for that reason void. Taylor v. Rowland, 26 Tex. 293; Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567.

In the case last cited our Supreme Court holds that a minor sued as an adult and not defended by a guardian ad litem might properly sue to set aside such judgment and to have a new trial...