Weiss v. Coudrey
| Decision Date | 20 October 1903 |
| Citation | 76 S.W. 730,102 Mo.App. 65 |
| Parties | WEISS, Respondent, v. COUDREY et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. S. P. Spencer Judge.
AFFIRMED.
Judgment affirmed.
Robert A. Holland, Jr., for appellant.
The court had no jurisdiction to grant the equitable relief sought, to-wit, to nullify the said judgment before the justice of the peace, and to enjoin the collection of the same. If the justice erred in refusing to appoint a next friend upon the petition of the defendant, the defendant had an adequate remedy at law, and the proper course to pursue was to take an appeal from the judgment of the justice. Lemon v. Sweeney, 6 Ill.App. 507; Spelling on Extraordinary Remedies, paragraphs 109-124; High on Injunctions (3 Ed.), secs. 170-173; Drake v Hanshaw, 47 Ia. 291; Meyer v. Davis, 47 Ia 323; Truesdale v. McCormick, 126 Mo. 39; Jeffrie v. Robideaux, 3 Mo. 24; Millard v. Marmon, 116 Ill. 649; Eisenmeyer v. Murphy, 42 Minn. 84; Child v. Shannon, 16 Mo. 33; Bailey v. McGinness, 57 Mo. 62; Brackett v. Brackett, 53 Mo. 265; Rees v. McDonnell, 115 Mo. 145; Railroad v. Lander, 59 Mo.App. 3.
Bass & Brock for respondent.
(1) When a judgment is rendered against a minor by a justice of the peace without the appointment of a guardian ad litem, the same may be set aside by direct proceedings instituted for that purpose in the nature of audita querela, as in this case. Charley v. Kelley, 120 Mo. 134; Townsend v. Cox, 45 Mo. 402; Powell v. Gott, 13 Mo. 460; Neenan v. St. Louis, 126 Mo. 89; Starbird v. Moore, 21 Vt. 529; Judd v. Downing, 1 Brayt. 27. (2) The minor in such a case has no other remedy at law, for until a guardian ad litem is appointed, the minor can not act for himself or by attorney for the purposes of appeal or take any action to remedy the error in fact, and a writ of error would not lie from the judgment of a justice of the peace, nor can the same be set aside by a direct proceeding before the justice; an infant can not be guilty of laches. Ware v. Brush, 1 McLean 553; Sheppard v. Hibbard, 19 Wend. 96; Art. 12, sec. 835, R. S. 1899; Matson v. Dickerson, 3 Mo. 239; Crow v. Weidner, 36 Mo. 413; Art. 7, secs. 3925, 3928 and 3929, R. S. 1899; Starbird v. Moore, 21 Mo.App. 529; Gamache v. Prevost, 71 Mo. 84; Garesche v. Gambs, 3 Mo.App. 572; Jeffrie v. Robideaux, 3 Mo. 33; Gibson v. Chouteau, 39 Mo. 536; Young v. Downey, 150 Mo. 317.
The purpose of this action is to vacate a judgment obtained by the defendants against the plaintiff before a justice of the peace, and to restrain its enforcement meanwhile by the garnishment of the plaintiff's employer, which was about to be done. The action in which the judgment was entered was instituted by H. M. Coudrey and W. S. Scott before R. B. Haughton, a justice of the peace of St. Louis, on a note for seventy dollars. Weiss was served, appeared by counsel and filed a motion for the appointment of a guardian ad litem. The plaintiffs in the action then took a change of venue to another justice of the peace, J. J. Spaulding. The motion filed by Weiss recited that he was a minor and prayed the appointment of a guardian, but neither magistrate granted the prayer and justice Spaulding tried the case and rendered judgment against Weiss for the amount of the note and costs without the appointment of any one to represent him.
No appeal was taken from that judgment, but this proceeding was instituted in the circuit court to annul it.
On the trial of the present case evidence was given that at the trial of the case before the justice, the issue of whether the plaintiff was a minor or of full age was tried and resulted in a finding that he was of age.
The evidence proves positively that Weiss was less than twenty-one years old when the defendants got judgment against him, but he was near that age.
The circuit court vacated the judgment of the justice of the peace as prayed and defendants appealed. Their position is that if the justice was wrong in refusing to appoint a guardian for Weiss and in proceeding with the case against him without one, Weiss had a perfect remedy by appeal and can not seek relief by an independent attack on the judgment.
Minor defendants are denied by statute the privilege which other persons have of appearing and defending actions in person or by agent or attorney. R. S. 1899, sec. 3928. The procedure to be pursued when an infant is sued, either before a justice of the peace or in the circuit court, is the appointment of a guardian to represent him, and after service of process the cause can not regularly progress farther until the appointment is made. R. S. 1899, secs. 558, 3929. When Weiss moved for a guardian on the ground of his minority, it became the duty of the justice to grant his request instead of referring to a jury the issue of his non-age; and the judgment which ensued upon the irregular procedure is voidable in a direct proceeding instituted for that purpose. Garesche v. Gambs, 3 Mo.App. 572; Gamache v. Prevost, 71 Mo. 84; Neenan v. St. Joseph, 126 Mo. 89, 28 S.W. 963. When such a judgment is given by a court of record, the fact of minority being overlooked, the common practice in this State is to proceed for its annulment by motion coram nobis in the court which rendered it. Neenan v. St. Joseph, supra. That practice is not applicable to a justice's court and some other must be used.
It is necessary that the method of attack be direct and not collateral, and defendants contend that this proceeding is collateral. We think otherwise....
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