170 Ill. 610 | Ill. | 1897
delivered the opinion of the court:
The sole question arising on this record is whether the findings and decree of the court are supported by the proofs. We have carefully read and considered the evidence and think the decree should be affirmed. Upon many points the evidence was directly conflicting, and the ascertainment of the truth as to such disputed points depended larg'ely upon the credibility of the different witnesses and the weight that ought to be given their testimony. The chancellor saw the witnesses and heard them testify, and therefore had superior opportunity to judge as to their reliability and truthfulness and as to the weight which ought to be accorded to their testimony. Aside from this, it appeared from the testimony on behalf of the appellant, the suit was instituted upon the prior agreement of an attorney assuming to represent the minor plaintiff, or the mother of the minor, that the claim of the plaintiff should be compromised by the payment of the sum of $125, and that the compromise or settlement should be carried into effect by filing a declaration and securing the entry of judgment for that sum and the satisfaction of record thereof, and that the proceeding's in court were perfunctory, and but for the purpose of attempting to give validity to the settlement of the right of the plaintiff to recover damages. We think the court was justified by the evidence in concluding that neither the minor complainant nor his mother, whose name was used in said pretended leg'al proceeding as his next friend, authorized such action to be instituted or had any knowledge that it was pending in court.
The bill charged that the summons was issued and the declaration, plea and replication filed on the same day the judgment was entered, and we find no denial of such allegations in the answer. It appeared also in the evidence that the declaration was filed at the request of the representative of the appellant company, and that such representative agreed with the attorney who filed the same that he would pay the fee for his services. The chancellor was amply justified in regarding the proceedings in the court as but formal, and as intended solely to employ the functions and powers of the court to give validity to the prior agreement of the representative of the company and the attorney who assumed to be the representative of the minor plaintiff and his mother.
The evidence also warranted the view neither the minor plaintiff nor his mother agreed to settle the claim, or authorized such attorney to make any settlement of the claim, of the plaintiff. Moreover, the plaintiff, being a minor, would not be bound by any agreement made with him, nor had his mother, by reason of the parental relation, any leg'al right to compromise and settle his right of action. When the alleged settlement was made the mother of the plaintiff had not been appointed or recognized by the court as his next friend, and had no power to act or bind him in that capacity. Had she been appointed to prosecute the suit as next friend of the infant or recognized by the court as acting in that capacity, she would have had “power to claim and pursue the rights of the infant and powerless to yield or cede it to others,” (Chicago, Rock Island and Pacific Railroad Co. v. Kennedy, 70 Ill. 350,) and would have had no power to make settlement of the demand of.the infant except by leave of the court. Tripp v. Gifford, 29 N. E. Rep. (Mass.) 208.
It does not appear the case was settled by leave of the court, but the record purports to show it was submitted to the court for trial and decided. The chancellor correctly held the appellee was not concluded by the alleged settlement or compromise of his claim, or by the judgment procured to be entered in pursuance of such agreement.
The decree of the Superior Court and the judgment of the Appellate Court are affirmed.
Judgment affirmed.
