Thomason v. Gray

84 Ala. 559 | Ala. | 1887

SOMERVILLE, J.

Tlie Circuit Court, in our opinion, did not err in refusing to quash the execution against the appellant, Thomason, which was issued in the name of the appellee, Bolán B. Gray. The contention of the petitioner was that Gray, being a minor, and having brought the suit by his next friend as required by statute (Code, 1886, § 2579), and recovered judgment in the Circuit Court in this form, the execution should follow that judgment, although on appeal taken to the last term of the Supreme Court the judgment was here affirmed as one in favor of Gray, omitting all allusion to his next friend.

A full answer to this suggestion is found in the settled principle, many times decided, that where the judgment of a lower court is affirmed, on appeal taken to this court, it is merged in the judgment of the appellate court, so that it can not be altered by the lower court; nor by this co'urt after expiration of the term at which it was rendered. — Werborn v. Pinney, 76 Ala. 291; McArthur v. Dane, 61 Ala. 539; Wiswell v. Monroe, 4 Ala. 19; Stephens v. Norris, 15 Ala. 79.

It may be that tlie judgment of tbis court is subject to amendment nunc 'pro tunc so as to show tbe intervention of tbe plaintiff’s next friend. But tbis omission can not affect tbe validity of tbe judgment, or tbe execution sought to be quashed, which -follows tbe judgment as affirmed. Tbe next friend of tbe minor is not tbe real and true party plaintiff to tbe cause. The purpose of bis intervention is to guide tbe discretion of tbe minor, give him suitable advice, and protect bis interests, by acting for him in many tilings connected with tlie suit which be is incompetent to do by reason of bis disability as an infant, chief among which is bis inability to employ or act by an attorney. — Cook v. Adams, 27 Ala. 294. Another purpose is to have before tbe court, on the record, some person sui juris who can be held responsible for tbe costs of tbe suit, as well as for tbe conduct of tbe cause. Cooper v. Maclin, 25 Ala. 298; Riddle v. Hanna, Ib. 484.

It is obvious that tbe execution is not so irregular as to affect its validity, and its payment by tbe defendant to tbe sheriff would be a full defense to auy subsequent attempt of tbe minor’s proohein ami to enforce any supposed claim in bis favor based on tbe same judgment, whether amended nunc pro tune, or otherwise.

Affirmed.