Powell v. Gott

• Decision Date: 31 July 1850
• Citation: 13 Mo. 458
• Parties: POWELL v. GOTT.
• Court: Missouri Supreme Court

13 Mo. 458

POWELL

v.GOTT.

Supreme Court of Missouri.

July Term, 1850.

ERROR TO MONTGOMERY CIRCUIT COURT.

BUCKNER, for Plaintiff. 1. The first question presented for the decision of the court is, whether this proceeding by motion is barred by the 8th section, 7th article, Practice at Law, p. 831. The 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. 561; 1 Duer & Paine's Pr. 365; Jacobs' Law Dict., “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 autherities--Knapp v. Crosby, 1 Mass. R.; Arnold v. Sandford, 14 Johns. R. 416; Mockey v. Grey, 2 Johns. 192; 1 Tidd's Pr. 1056; Jeffrle v. Robideaux, 3 Mo. R. 33; 8 Coke, 58; Bacon, Infancy and Age, 617, 618. 2. The question of affirmance or disaffirmance 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, 10 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 done, 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. For this position 2 Kent, 237, 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 realestate, 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 Dict., Infant; 3 Bac. Abr. 584, 597. The appointment of an attorney is not a judicial act, like that of a guardian, and 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. Shelbach, 1 Dall. 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:

PORTER, for Defendant. 1. The said motion was properly overruled, because it did appear to the court that Powell sought to get rid of Gottis 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. 3 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...