45 Mo. 401 | Mo. | 1870
delivered the opinion of the court.
The respondent’s intestate recovered a judgment, on the 5th day of November, 1853, in the Andrew County Circuit Court, against the appellants for the sum of one thousand dollars damages in an action of trespass vi el armis. The defendants were duly served with process, and appeared and defended the action by attorney. This action was brought upon that judgment, returnable to the October term, 1869. The defense set up in the answer in this case was that at the time the judgment was rendered, the defendant, Calvin Cox, was a minor under the age of twenty-one years ; that he appeared by attorney, and not by guardian; and therefore the judgment was a nullity. The Circuit Court gave judgment for the plaintiff, which was affirmed by an equal division in the District Court.
The record clearly shows that at the time the judgment was rendered, in 1853, Calvin Cox was a minor in his twentieth year, and that he appeared and defended by attorney, no guardian having been appointed for him. The only question to determine, therefore, is whether the judgment was absolutely void, or whether it was merely erroneous and voidable.
The foundation of the suit in which the judgment was given was a matter for which the infant was responsible, for an infant, equally with an adult, is liable for his frauds and torts; but the appearance was irregular, and the judgment would unquestionably have been reversible on error. A judgment rendered against an infant, appearing by attorney, may be set aside or recalled. (Powell v. Gott, 13 Mo. 458; Randalls v. Wilson, 24 Mo. 761.) In Powell v. Gott, ubi supra, it was held that a judgment against an infant defendant, who appeared by attorney, might be set aside upon motion made after the infant had arrived at age. In that case the judgment was rendered in 1841, and the motion to set aside was made in 1847. • The court said that there was no limitation to be found in our statute book to a proceeding to correct a judgment of law founded upon an error of fact. -'(But in all the cases which I have examined, where the infant has availed himself of his privilege, the proceeding was either by prosecuting his writ of error, or by a direct motion to set aside or recall the judgment.
Judge Napton, in Fulbright v. Cannefox, 30 Mo. 425, in speaking on the subject of judgments against infants where there was an appearance by attorney, says: “ Such judgments are not
In the present case the judgment has been in existence about fifteen years since the defendant has attained his majority, and yet no proceedings have been taken to have it reversed, set aside, or vacated. Judgment records are of high solemnity, and both law and public policy require that they should be enforced unless their invalidity is most palpable. To enable a party to successfully defend against a judgment, the judgment must be void. Though a judgment is voidable, still that will not prevent a recovery on it whilst it remains in force. ,To prevent its operation, proceedings must be prosecuted to reverse or set it aside. (Fithian v. Monks, 43 Mo. 508.)
I think the judgment of the court below should be affirmed.