Kleffel v. Bullock

| Neb. | Jan 15, 1879

Lake, J.

The defendant in error commenced an action in the county court for Bodge county against the plaintiff in error, to* recover on an account for goods furnished and labor performed, a balance claimed to be due of sixty-six dollars and ninety cents. Immediately upon being summoned, tbe plaintiff in error offered to confess a judgment for the sum of forty dollars, together with tbe costs then accrued, as provided in sec. 1004 of tbe code of civil procedure; by vyhich it is enacted that: “ If tbe defendant, at any time before trial, offer in writing to allow judgment to be taken against him for a specified sum, tbe plaintiff may immediately have judgment therefor, with tbe costs then accrued; but if be do not accept such offer before tbe trial, and fail to recover in tbe action a sum equal to tbe offer, be cannot recover costs accrued after tbe offer; but costs must be adjudged against him. But tbe offer, and failure to accept it, cannot be given in evidence to affect tbe recovery otherwise than as to costs as above provided.” Tbe recovery being less than this offer, the defendant in error bad judgment in bis favor for tbe amount of tbe verdict and costs before tbe filing, of tbe offer, but against him for all costs made subsequently to that time.

Erorn this judgment the defendant in error appealed to tbe district court, when tbe verdict in his fayor was for a still smaller amount. Thereupon, on tbe second day of April, 1878, be filed a motion for judgment on tbe verdict, and for bis costs, notwithstanding tbe said offer to confess, and at tbe same time proved to tbe court tbe fact, then for tbe first time brought to its attention, that be was still a minor, and would not attain bis majority until the sixth day of September of that year. On tbe seventh of October, while this motion was still pending, and before any further step bad been taken in the case, tbe defendant in error, by special appearance, disclaimed all right to tbe verdict or benefit under it, and insisted “ on bis minority, as a bar to any judgment against him for any costs in this case.” Acting upon this disclaimer, and tbe unquestioned minority of tbe defendant in error, as stated, the court dismissed the case generally, and, againstthe demand of the plaintiff in error, refused to render judgment in his favor for costs. This refusal is the ground of the alleged error, and to • correct which the case is brought to this court.

The first question to be disposed of is one of practice, raised by defendant in error in his brief. He contends that, in order to make an offer to confess judgment under the statute available to the party making it on appeal, the offer must be renewed in the appellate court. "We cannot so hold, ^he offer, once properly entered, becomes a part of the record of the case, and, if not withdrawn, is just as available on final judgment in the appellate court as it could have been in the court where made had no appeal been taken.

The next and main question presented by the record is much more difficult, and altogether novel in this court. By our legislation, all the disabilities of infants, as they exist at common law, are fully recognised. Indeed, we are not aware of any statute in this state modifying them in any respect whatever. Accordingly, we find that section thirty-six of the code of civil procedure provides that: “The action of an infant must be brought by his guardian or next friend.” And even when brought by his next friend, if it be discovered that the action is not for the infant’s benefit, the court, on its own motion, may dismiss it. Our practice in this respect seems to be based upon the unquestionable presumption of law that, until a person arrives at full age, no matter what his mental attainments and experience in life may be, he has not sufficient capacity to decide for himself whether the action would probably benefit him, or whether, under all the circumstances, it ought to be brought.

Observing still further the common law respecting suits by infants, our code, section tbirty-seven, provides that: “The guardian or next friend is liable for the costs of the action brought by him,” thus implying very clearly that even although the infant has had the benefit of the judgment of a person of mature years as to the propriety of bringing the action, yet if it result disastrously to him, he shall not be liable to a judgment for costs. Indeed, one of the chief objects in requiring a next friend seems to be, as was said in Heft et al. v. McGill et al., 3 Penn. State, 256, “to supply the want of capacity in the infant, to afford in his own person a party on the record responsible for costs.” And we find that, independently of statutory regulation, the rule seems to be that no judgment for costs can be rendered against an infant plaintiff. Bouche v. Ryan, 3 Blackf., 472" court="Ind." date_filed="1834-12-08" href="https://app.midpage.ai/document/bouche-v-ryan-8237556?utm_source=webapp" opinion_id="8237556">3 Blackf., 472. Sproule v. Botts, 5 J. J. Marshall, 162. But in Massachusetts, under a peculiar statute, it is held that an infant plaintiff, and not his prochem amy, is liable to judgment for costs. In one case, "Wilde, J., remarked: “ The defendants claim costs against the prochei%i amy, on the grounds that the plaintiff, being an infant, is not liable therefor; and this claim seems to be supported by the English practice. But our practice seems to be different, and is conformable to our statutes regulating the recovery of costs.’’ In that state, in order to make the prochem omy liable for costs, he must indorse the writ therefor. Smith v. Floyd, 1 Pick., 275. Crandall v. Slaid and wife, 11 Metc., 288. "We have no statute similar to that of Massachusetts; but, as before shown, our entire legislation seems to harmonize completely with the practice under the common law, both in England and in this country.

Now it would seem to be a reasonable conclusion, from what we have already shown, that had judgment been rendered against the defendant in error while he was still a minor, it would have been erroneous. If an infant plaintiff, Who has had the advice of a guardian or next friend as to the propriety of commencing his action, cannot be required to pay costs when defeated, upon what principle can he be adjudged to pay them when he has been so indiscreet as to proceed without such aid, relying alone upon his own immature judgment in the matter? ¥e know,of none.

It may seem a hardship on the plaintiff’ in error to be put to the expense of defending against what was proven to be an unjust demand, without recourse finally against the claimant. But this result he could have successfully guarded against by pleading the infancy of the plaintiff in the action in abatement at the outset, by which he would either have brought into the case a responsible “ nextfriend” who would have been liable for costs, or obtained a dismissal of the action without further trouble or expense.

It only remains ñow to inquire whether, by reason of the defendant in error having arrived at his majority before the termination of the action, a judgment against him for costs would have been proper.

From analogy to the cases of the ratification of the voidable acts of infants after becoming of full age, we -think it clear that if, after reaching his majority, he had either assented to judgment on the verdict or taken a single step in the further prosecution of the action, all the privileges of infancy would thereby have been fully waived, and he would have been bound by the action of the court. But the record shows that, at the very first opportunity after he reached the age of twenty-one years, he disclaimed all benefit from what had been done in the case, and in the most unequivocal manner denied the jurisdiction of the court to proceed further. Our opinion is that a judgment against the defendant in error, under these circumstances, would be equally as erroneous as if it had been rendered while he was yet an infant.

Judgment aeeirmed.