Johnson v. Waterhouse

• Decision Date: 08 January 1891
• Citation: 26 N.E. 234,152 Mass. 585
• Parties: JOHNSON v. WATERHOUSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 585

26 N.E. 234

JOHNSON v. WATERHOUSE.

Supreme Judicial Court of Massachusetts, Bristol.

January 8, 1891

Case reserved from supreme judicial court, Bristol county; W.A. FIELD, Judge.

HEADNOTES

Infants 78(1)

211 ----

211VII Actions

211k76 Guardian Ad Litem or Next Friend

211k78 Necessity of Appointment

211k78(1) In General.

That the parents of an infant were present in court with counsel and defended on his behalf will not make the judgment binding on him, if he had no legally appointed guardian, or guardian ad litem.

Infants 87

211 ----

211VII Actions

211k76 Guardian Ad Litem or Next Friend

211k87 Failure to Procure Appointment.

An infant may maintain a writ of error to avoid a judgment against him in an action against him wherein no guardian was appointed to defend in his behalf.

COUNSEL

Braley & Swift, for plaintiff.

Jennings & Brayton, for defendant.

OPINION

C ALLEN, J.

The general rule is well established that a judgment cannot properly be rendered against an infant defendant in a civil suit, unless he has a guardian who may defend the suit in his behalf, and, if a judgment is so rendered, the infant is entitled to maintain a writ of error to avoid the same. Crockett v. Drew, 5 Gray, 399; Swan v Horton, 14 Gray, 179; Farris v. Richardson, 6 Allen, 118; Mansur v. Pratt, 101 Mass. 60; Cassier's Case, 139 Mass. 458, 1 N.E. 920. In the present case, the plea which is demurred to avers that the plaintiff in error was an infant at the time of the rendition of the judgment, and had no probate guardian, or legally appointed guardian ad litem, but was in fact represented and defended in the action by his father and mother, who were present in court at the trial, and were represented by counsel, and defended the action on his behalf. The defendant in error contends that these facts will supply the want of a guardian regularly and formally appointed, and that, under these circumstances, the infant is not entitled to maintain his writ of error. Such appears to be the rule adopted in Vermont. Priest v. Hamilton, 2 Tyler, 50; Wrisley v. Kenyon, 28 Vt. 5; Fuller v Smith, 49 Vt. 253. The case cited from Mississippi does not appear to us to go so far, as there a husband was authorized by statute to appear for his infant wife, so that no guardian ad litem for her was deemed necessary. Frisby v. Harrisson, 30 Miss. 452. No other decision has been cited by counsel which goes so far as the Vermont cases, and, after some examination, we have found none. The practice of having a regularly appointed guardian rests on good reasons. It has been said that the duty of watching over the interests of infants in a litigation devolves, in a considerable degree, upon the court. Bank v. Ritchie, 8 Pet. 128, 144. This duty is performed, in the first instance, by seeing that an infant is represented by a guardian who is suitable to protect his interests in the particular case. The father is usually a proper person to act as such guardian; but not always. There is an obvious advantage in having the fitness of the person who is to act as guardian determined in the first instance, rather than after the trial is over. It was held in Brown v. Severson, 12 Heisk. 381, that where an infant's mother, who was named as his guardian in his father's will, had appeared in a suit as his guardian, and answered as such, and had been recognized by the court as guardian, the judgment should not be set aside, though no formal appointment as guardian appeared of record. In the case now before us, the infant's parents did not file an answer as his guardians, nor assume to act formally as such, and there is nothing to show that the court recognized them as his actual guardians, or acted upon the assumption that they were such. They were simply his parents. It is laid down in Macpherson on Infancy, 353, that no legal right of parentage, or of guardianship, will enable any one to act for the infant without an appointment as guardian. If there is no guardian of an infant defendant, the plaintiff must bring the matter to the attention of the court, and see to it that one is appointed. Shipman v. Stevens, 2 Wils. 50; Swan v. Horton, supra; Clarke v. Gilmanton, 12 N.H. 515; Mason v. Denison, 15 Wend. 64, 67. In Letcher v. Letcher, 2 A.K.Marsh. 158, the mother of infant defendants, who was also herself a defendant, answered for them as their guardian; but she did not appear to have been appointed to defend for them, and the judgment against them was reversed. See, also, Irons v. Crist, 3 A.K.Marsh. 143; Searcey v. Morgan, 4 Bibb, 96; Pond v. Doneghy, 18 B.Mon. 558. In Swain v. Insurance Co., 54 Pa.St. 455, an attorney appeared for an infant at the instance of his mother; but this was held to be insufficient. In Colman v. Northcote, 2 Hare, 147, Vice-Chancellor WIGRAM refused to receive the answer, in equity, of a married woman, who was an infant, either separately or jointly with her husband, until a guardian should have been assigned to her. The fact that there are adult defendants joined with an infant defendant, and that all appear by the same attorney, will not avail to prevent the infant from obtaining a reversal of the judgment. Goodridge v. Ross, 6 Metc. (Mass.) 487; Castledine v. Mundy, 4 Barn. & Adol. 90; Foxwist v. Tremaine, 2 Saund. 212a, note 4. The father of an...