Wainwright v. Wilkinson

• Decision Date: 14 May 1884
• Parties: EMILY WAINWRIGHT, by her next friend MARY A. BARKLEY v. THOMAS S. WILKINSON.
• Court: Maryland Court of Appeals

62 Md. 146

EMILY WAINWRIGHT, by her next friend MARY A. BARKLEY v. THOMAS S. WILKINSON.

Court of Appeals of Maryland

May. 14, 1884

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was argued before ALVEY, C.J., YELLOTT, STONE, MILLER and BRYAN, J.

John H. Handy, for the appellant.

Wm. Pinkney Whyte, for the appellee.

BRYAN J., delivered the opinion of the Court.

Emily Wainwright, an infant, brought a suit by her prochein ami, Mary A. Barkley, in the Superior Court of Baltimore City, against the appellee. She employed an attorney, and requested him to dismiss the suit, which he accordingly did. After a considerable time, a motion was made in the name of the plaintiff, by her prochein ami, asking the Court to strike out the entry of " off," which had been made in the case, and to re-instate it on the docket for trial. This motion was overruled.

The prochein ami was the only person who was authorized to prosecute the suit. She is responsible for costs, and is charged with the duty of employing an attorney, and protecting the interest of the infant. The latter, until she reached the age of twenty-one years, was incompetent to appoint an attorney, or to take any step in the suit which could bind her rights. Greenwood vs. Greenwood, 28 Md., 386; De Ford vs. State, use of Keyser, et al., 30 Md., 200; Baltimore & Ohio R. R Co. vs. Fitzpatrick, 36 Md., 624.

The appointment of an attorney by the infant being nugatory, his dismissal of the suit was simply void. The Court was, therefore, in error, when it refused to re-instate the case. This case has been compared in the argument to a non-suit regularly entered. We do not so regard it. When the plaintiff in a cause submits to a non-suit, it is well settled that he has no right of appeal. This is an appeal from an order of the Court refusing to correct an entry of non-suit, made against the will of the only person who had the right to authorize it. The prochein ami had as much right to the protection of the Court in this particular as in any other. The erroneous entry subjected her to a liability for costs, and an error of the Court in refusing to relieve her ought certainly to entitle her to redress. It has been settled by many decisions of this Court, that appeals may be taken from refusals to strike out judgments, as well as from orders striking them out.

In Montgomery vs. Murphy, 19 Md., 576, this Court entertained an appeal from the refusal of the Court below to strike out a judgment by confession erroneously entered, and being satisfied of the error, ordered the judgment by...