Watson v. Hinchman

41 Mich. 716 | Mich. | 1879

Marston, J.

We are of opinion that the attorneys who appeared in this cause on behalf of defendant Watson were entitled to notice of any subsequent steps taken in the cause affecting their client’s rights, even although they may have withdrawn the plea by them filed in behalf of said defendant. The affidavit as to the infancy of defendant Wait, simply recited the fact that in another court and cause defendant Wait had made an affidavit that he was an infant, for the purpose of having a guardian ad litem appointed. If such affidavit filed in this case could be considered as any evidence of Wait’s infancy, of which at least there must be considerable doubt, it could not be conclusive as to his co-defendants, whose liability could not thus be enlarged, without an opportunity being given them to contest the fact. Nor could the judgment rendered against the three defendants be vacated upon this showing as to the infancy of one of them, the declaration amended setting up a cause of action against the two remaining defendants and a judgment rendered against them without notice to the attorneys who had appeared in the cause. ' We have repeatedly held that the rights of parties could not thus be changed or affected without giving them an opportunity to be heard. Montgomery v. Merrill, 36 Mich., 97; Crawford v. Tuller, 35 id., 57; Jewett v. Morris, ante, p. 689.

The judgment must be reversed and the case remanded for farther proceedings.

The other Justices concurred.