28 Vt. 5 | Vt. | 1855
The opinion of the court was delivered by
This writ of audita querela is brought to vacate a judgment which was rendered against the complainants in favor of Mr. Kenyon. The ground of complaint is, that Charles Wrisley, one of the defendants in that suit, was an infant, that he appeared by attorney, and that no guardian ad litem was appointed by the court. It appears from the case, however, as well as from the record of the justice, that Eleazer D. Wrisley was the father and natural guardian of the minor, that the suit was prosecuted to judgment against them both, that they appeared at the trial, and that the father took upon himself the defense of the suit. As a general rule infants must defend by guardian. They cannot appoint an attorney, and therefore cannot appear by one. Co. Litt. 135, b. note 220. Comstock v. Carr, 6 Wend. 526. In cases, therefore, when the infant is sued alone, or jointly with others, it is incumbent on the plaintiff to see that the rights of the infant are
The judgment of the county court must be affirmed.-