131 A. 688 | N.H. | 1926
Laws 1911, c. 163, s. 4, provides that if the workman suffering an injury within the terms of the act "shall commence any action at common law . . . against the employer therefor, he shall be barred from all benefits of the act in regard thereto." The record discloses that such an action was commenced and prosecuted to judgment. As the court had jurisdiction of the subject matter it is sufficient answer to the plaintiff's exception that this judgment is not open to collateral attack in these proceedings. State v. Kennedy,
If, however, the plaintiff's petition be treated as including such a motion, her right to relief is not conclusively established by the record here. On the contrary the judgment appears to be well founded. An infant, by reason of want of knowledge, judgment and discretion, being legally incapable by himself of enforcing his rights and remedies (Moore v. Hoyt,
The action at law was brought and entered in court by the counsel of the plaintiff without the advice and assistance of a next friend. At this stage of the case the objection to the incapacity of the plaintiff could have been taken by a plea in abatement (Young v. Young,
From the fact that the trial proceeded to the completion of the plaintiff's evidence and to the entry of nonsuit and judgment, it must be assumed that the order of the court was complied with and that the person or persons intended by the court in fact appeared and authorized the continuance of the trial. On no other theory can the conduct of counsel in the continued prosecution of the plaintiff's action be explained, since the appearance of counsel is always presumed to have been with due authority until the contrary is shown. Beckley v. Newcomb,
Whether the person designated by the court was in fact the husband, the word "father" being a mere error of description, or whether the father appeared and, without formal record of his withdrawal or removal, the husband was by the allowance of the formal amendment substituted for the father, is immaterial. With the court's approval the writ was amendable either by the insertion of the name of a next friend (Young v. Young,
As it thus appears from the record that prior to the filing of her petition the plaintiff by her next friend had prosecuted her action at law for the recovery of damages sustained by the injury for which she is now seeking compensation, it follows that by the terms of the act, Laws 1911, c. 163, s. 4, she is now "barred from all benefit" thereunder.
Exceptions overruled.
ALLEN, J., did not sit: the others concurred. *225