49 Vt. 253 | Vt. | 1877
The opinion of the court was delivered by
This was an action of audita querela, brought to set aside and vacate a judgment of a justice of the peace in favor
The question presented is, whether, upon the above facts, the judgment sought to be vacated is a valid, binding judgment, or whether it is voidable by the complainant. It is well settled that an infant is legally incapable of appearing for himself and defending his suit in court, or of appointing an attorney to appear and defend for him; and such an appearance or defence is not, in contemplation of law, binding, because the infant is deemed not to have had his day in court. But where the party who is legally competent to appear in behalf of the infant has notice of the pendency of the suit, and opportunity to appear and defend the same, and actually does appear and participate in the defence, the infant has his day in court, and has opportunity to make defence by one having legal capacity to make it. Where a guardian ad litem is appointed for an infant, the appointment should appear of record. But the appearance in, and defence of, the suit by the natural guardian, need not be made a matter of record, and may be shown by parol. The cases of Priest v. Hamilton, 2