Peak v. Shasted

• Decision Date: 31 January 1859
• Citation: 1859 WL 6712,21 Ill. 137,74 Am.Dec. 83,11 Peck 137
• Parties: GEORGE C. PEAK, Plaintiff in Error,v.JAMES S. SHASTED, Defendant in Error.
• Court: Illinois Supreme Court

21 Ill. 137
1859 WL 6712 (Ill.)
74 Am.Dec. 83
11 Peck (IL) 137

GEORGE C. PEAK, Plaintiff in Error,
v.
JAMES S. SHASTED, Defendant in Error.

Supreme Court of Illinois.

January Term, 1859.

ERROR TO MACON.

A minor can only appear and defend a suit by his guardian. If the minor fail to appear, the plaintiff, before plea, should have a guardian ad litem appointed by the court.

If an infant appear in person, or by attorney, it is error in fact, which may be assigned in the court in which judgment may be rendered.

A judgment or decree against a minor without a guardian, or on appearance by attorney, is not void or voidable.

A judgment against a minor, to whom a guardian has not been appointed, may be set aside in the court where it is rendered, on motion. Where the judgment has been set aside, the defendant may make any defense he may be entitled to.

AT the July term, 1858, of the Macon Circuit Court, Shasted as assignee, obtained a judgment, by default, against Peak, a minor, on a note dated 28th March, 1858.

At the November term, 1858, Peak filed an affidavit of his father, showing that the said George C. Peak was born on fourth November, 1837, with notice to Shasted, and service of a copy of affidavit and time of motion--and by his attorneys entered a motion to reverse, withdraw, annul and for nothing hold, said judgment by default. The parties appeared by their respective attorneys, and on argument (the facts of the affidavit not being denied) the motion was denied and overruled, and the counsel of the said Peak excepted.

The error assigned is, the improper refusal of the court below to allow the motion of the plaintiff to reverse, withdraw, annul and for nothing hold, the said judgment by default.

D. A. AND T. W. SMITH, for Plaintiff in Error.

THORPE & TUPPER, for Defendant in Error.

WALKER, J.

This was an action of assumpsit instituted in the Macon Circuit Court, on a note executed by Peak to William E. Shasted, and assigned by him to plaintiff below. Summons was duly issued and served to the July term, 1858, and at the return term, the defendant, failing to appear or plead, a default was entered, and a judgment rendered against him for the amount of the note and interest. At the November term following, Peak, after having given a notice, entered a motion to set aside the judgment, upon the grounds that he was, at the time the writ issued and the judgment was rendered, a minor under twenty-one years of age, and because no guardian appeared

[21 Ill. 138]

or was...