Beliveau v. Amoskeag Manufacturing Co. , 68 N.H. 225 ( 1894 )

In arriving at the conclusion that the motion must be denied, the authorities have not been overlooked which hold that an infant cannot employ an attorney or an agent, or make a valid agreement to compromise his suit (Biddell v. Dowse, 6 B. C. 255; Armitage v. Widoe, 36 Mich. 124; 2 Laws. Rights, Rem. Prac., s. 824; Tapley v. McGee, 6 Ind. 56; Wainwright v. Wilkinson, 62 Md. 146), or those which hold that the "next friend" of an infant is not his agent or attorney, but an officer of the court, who derives his authority, not from the infant, but from the court. Guild v. Cranston, 8 Cush. 506; Tripp v. Gifford, 155 Mass. 108; Morgan v. Thorne, 7 M. W. 400.

However this may be, it must be conceded that rights and remedies are as much the inherent birthright of an infant as of an adult; and if this be so, it necessarily follows from his disability to enforce such rights and remedies, that the infant must have the right to enforce them through the assistance of another. By what name such other person may be called is immaterial. He may be styled, or may be in fact, the guardian, the parent, or the next friend; but, in the very nature of things, he is, and must be held to be, the representative of the infant, and to have the power to bind him by his proper and lawful acts. Among such acts, is that of bringing suit for any cause of action which has accrued in the infant's favor; and, for this purpose, the representative may, in the exercise of an undoubted authority, employ an attorney at law in the management and control of the suit (Davis v. Merrill, 47 N.H. 208, 210,211), which "although attended by a next friend is the suit of the infant." Bartlett v. Batts, 14 Ga. 539.

In such a case, the attorney becomes clothed with the ordinary powers pertaining to an attorney of record. Baltimore O. R. R. Co. v. Fitzpatrick, 36 Md. 619, 628. His authority is as extensive as it is in other cases, and the infant, through his representative, is bound by the attorney's acts within the ordinary scope of his authority the same as an adult would be, and has a like remedy against the attorney for any abuse of such authority, express or implied.

The bringing of a suit in the infant's behalf being rightful, it follows, as a legal consequence, that if judgment is properly rendered against him, he will be concluded by it (Guild v. Cranston, 8 Cush 506, 509; Tripp v. Gifford, supra); for there is no distinction between an infant and an adult with regard to the binding effect of a judgment. Smith v. McDonald,42 Cal. 484; Ralston v. Lahee, 8 Ia. 17, 23; Waring v. Reynolds, 3 B. Mon. 59; Wills v. Spraggins, 3 Grat. 555, 567; Porter v. Robinson, 3 A. K. Marsh. 254; Albee v. Winterink, 55 Ia. 184; 13 Am. Dec. 159, note; 74 Am. Dec. 298, note; 1 Freem. Judg. (4th ed.), s. 151; 2 Ib., s. 513. "He will not be permitted to dispute it, unless. upon the same grounds as an adult might have disputed it, such as fraud, collusion, or error" (2 Freem. Judg., s. 513); and no recognizable distinction is believed to exist between the case of an entry of judgment in regular course by an attorney of a party sui juris and the case of a like entry by an attorney properly employed by the representative of an infant to conduct the suit.

The authority of attorneys of record to make such entries is always presumed, if nothing appears to the contrary, and when made they are conclusive as between the parties, in the absence of fraud or mistake; and we apprehend it makes no difference, practical or legal, whether the agreement of the counsel to make them is expressed orally in open court and the entries are thereupon made upon the records by its order, or whether the agreement is reduced to writing by the counsel, and duly filed and entered upon the records, without being expressly brought to the court's attention and without obtaining its sanction, which in practice is never refused, and, at most, is but the merest formality. In such a case, the assent of the court is to be presumed.

In our opinion, the law in cases like the present one is correctly stated in Tripp v. Gifford, supra, which recognizes the fact of an extensive practice with regard to the adjustment and settlement of such cases, and in which it is said (p. 109): "Sometimes, but very rarely, the proposed arrangement is brought to the attention of the court, and its sanction obtained. In most instances, however, the settlement is made and the judgment entered without calling the attention of the presiding justice to or obtaining his approval. That such judgments conclude minor we have no doubt; . . . and even in equity, if a decree is entered against him by consent without special inquiry, will be bound by the decree."

Motion for rehearing denied.

SMITH and CHASE, JJ., did not sit; DOE, C. J., dissented: the others concurred.