Brown v. Hull

16 Vt. 673 | Vt. | 1844

The opinion of the court was delivered by

Hebard, J.

1. Did the court err in not dismissing'the petition? This depends upon another question, — and that is, who was the party ? If the prochein ami was the party, the petition should have been dismissed; if the minor was the party, the petition should have been retained.

The petition was an adversary proceeding, and must be served upon the infant in the same way that other processes are served upon infants. If he had a guardian, the guardian should have been cited in to defend; — if not, then a guardian ad litem should be appointed by the court. An infant may sue by his next friend, — as he did in this case, but he is never sued by his next friend. The next friend was not named in the petition, nor was it necessary that he should be. The statute requires the petition to be served upon the adverse party; and it was served upon the infant, who is the adverse party. The next friend is not regarded as a party for any purpose. The judgment is not against him. If he had been cited, and had paid no attention to the citation, the court must have appointed a guardian. The next friend could not be defaulted; — and-whether in any event he may be made liable for costs does not determine this question. If the infant, in the mean time, had arrived at the age of majority, there could be no question, I suppose, but what he would be the party.

This petition is a separate and distinct proceeding, although based upon the other, — but it is optional with the petitioner whether it shall be instituted; and when he has determined to prosecute his petition he must serve it upon the other party, in 'the same way that original suits are served.

2. Did the court err in sustaining the petition upon the facts, as detailed in the bill of exceptions ? The petition must have been sustained for one of the causes named in the statute, and that must have been “accident.” But whether the accident, upon which he relied, really caused the misfortune, and prevented the petitioner from having his day in court, is a question of fact, upon which the county court have passed, and is not subject to the revision of this court. Judgment affirmed.