Gosling v. Acker — 25 Wend. 638

Majority

p. 486

*Gosling and wife vs. Acker.

Headnote

Where the plaintiff in error assigns for error infancy and appearance by attorney, instead of guardian, in the court below, a plea that at the time of the rendition, of the judgment the party was of full age, is had, as tendering an immaterial issue.

Demurrer to plea in error. Gosling and wife sued Acker in the common pleas of the city of New-York, in an action of replevin. The suit was brought in September, 1838, and the cause was tried in July, 1839, when the plaintiffs were nonsuited, and the damages of the defendant were assessed at $132 ; for which Sum and the costs of the defence, judgment was rendered. The plaintiffs sued out a writ of error, and on the coming in of the

p. 487

record in January term, 1840, assigned for error the infancy of Gosling, the husband. The assignment of error stated that there was error in the record and proceedings aforesaid, and also in giving the judgment aforesaid, in this, to wit: That Gosling appeared in the suit by E. R. P. his attorney, and afterwards by S. B. II. J. his attorney, although at the time of his appearance, at the time of trial, and at the time of giving judgment, he was under the age of 21 years, to wit, of the age of 20 years and 9 months, and no more ; that he ought to have been admitted to prosecute his suit by guardian, and not by attorney, concluding with a verification, and prayer of reversal. The defendant in error pleaded that there was no error, &c. because Gosling, at the time of the giving of the judgment, was not under the age of 21, concluding to the country. To this plea the plaintiffs demurred.

J. L. Wendell, for the plaintiffs.

S. Stevens, for the defendant.

By the court,

The case of Arnold v. Sandford, 14 Johns. R. 417, I think is decisive of this one. The assignment in error there was, that D., one of the defendants, appeared and pleaded by attorney, while under twenty-one years ; and the defendant demurred to the *assignment. One ground of objection taken was, a defect [ *640 ] in the assignment, because it only averred the infancy at the time óf appearance and plea pleaded, whereas it should have been, that he was an infant at the time of the rendition of judgment. Thompson, C. J. was inclined to the opinion that appearing and defending the cause at the trial after age, might possibly be regarded as a waiver of the error, but not the entering up of judgment. The assignment here seems to have been drawn in reference to the above intimation of the chief justice, for it contains an averment of infancy at the time of the trial. It is certainly difficult to see how the entry of judgment against the party after he has attained his age, should operate as a waiver of the error, as the act is one in which he does not participate^ and is wholly independent of him.

The issue presented by the plea to the assignment seems to be an immaterial one, and the demurrer therefore is well taken.

Judgment for plaintiff.