Wilkiming ex rel. Randa v. Schmale — 1 Hilt. 263

Majority

p. 263

Louis Wilkiming by his guardian William Randa, v. Henry Schmale.

Headnote

Hie mere fact that an action brought to recover for a debt due an infant is prosecuted by a nest friend, instead of a guardian, will not render a judgment against him upon the merits void.

Such an error in a district court can only be corrected by an appeal. So long as the judgment remains unreversed, it is a bar to any other action for the same cause.

Appeal by plaintiff from a judgment of tbe Fourth District Court. This action was brought to recover wages claimed to be due Louis Wilkiming as clerk. Tbe answer contained a plea of prior adjudication. Tbe defendant, at tbe close of tbe plaintiff’s case, produced a record of a former suit on behalf of the same plaintiff and for tbe same cause of action, by wbicb it appeared

p. 264

that an action was brought bj tbe plaintiff in bis own name, originally, for tbe same cause; that, on the trial, tbe objection to tbe proceeding on that account bad been waived, and a next friend bad been appointed for the plaintiff by consent, in whose name the suit was thereupon continued; and that, at its conclusion, tbe court rendered judgment for tbe defendant upon tbe merits. This record was objected to, upon tbe ground that no guardian bad been appointed in that suit for tbe infant. Tbe objection was overruled, and an exception taken. Tbe justice rendered judgment for tbe defendant, from which tbe plaintiff appealed.

j^ames McGay, for tbe appellant.

-Taylor and Johnson, for tbe respondent.

It will not be necessary to determine whether tbe provisions of tbe Code respecting parties to actions apply to tbe justices’ courts of this city or not, as it is wholly immaterial whether tbe plaintiff appeared in tbe former action by a guardian or by a next friend, as the error, if it was one, would not affect tbe validity of tbe judgment or render it void. It might be a ground for reversing tbe judgment for error in fact, and as the judgment was against tbe plaintiff, his remedy, if be appeared erroneously by a next friend instead of a guardian, was by taking an appeal and getting tbe judgment reversed. Maynard v. Downer, 13 Wend, 575 ; Bloom v. Burdick, 1 Hill, 130 ; Schermerhorn v. Jenkins, 7 Johns. 373 ; Gardner v. Holt, Strange, 1217 ; King v. Code, id. 413 ; Hamlin v. Hamlin, Bulst. 189. But as long as tbe judgment stood unreversed, it was a bar to any other action for tbe same cause.

• Judgment affirmed.

Cases cited

Schemerhorn v. Jenkins 7 Johns. 373 N.Y. Sup. Ct. p. 264