Larkins v. . Bullard

Ruffin, J. The finding of the court seems to go to the length of saying that, notwithstanding the order directing it to be done, the infant children, of John Bullard were never in fact made parties to the action, or any defence made for them; and if so, then, under the authority of White v. Albertson, 3 Dev., 241, the judgment against them was absolutely void ab initio, and it was proper to give them relief by directing the same to be vacated as to them. Mason v. Miles, 63 N. C., 564. But supposing it to be otherwise, and that they could be made parties by having an appearance entered for them by an attorney, the judgment would still be clearly irregular, as being rendered contrary to the express provision of the statute and the uniform course of the courts. No court, with us, is authorized or accustomed to enter judgment against infants without the appointment of some one specially charged with the duty of *37 protecting their rights; and this must have been known to the plaintiffs and their attorneys when they procured the judgment to be signed — that they were getting a judgment such as the court ought not to grant, and such as it would not have granted, if rightly informed of the condition of the parties. Being then irregular, there can be no doubt of the power of the court to set it aside. Neither have the parties lost their right to be thus relieved by the court by their delay in seeking it. In Pearson v. Nesbitt, 1 Dev., 315, the judgment was set aside, upon the score of its irregularity, after the lapse of seven years; and so it was done in Keaton v. Banks, 10 Ired., 381, after eight years had transpired, and after the judgment had been fully satisfied by a sale of property under an execution issued thereon. It would be a plain violation of right to leave the judgment standing, so as to operate as an estoppel upon these infants, when the court can see that no real defence was ever made for them. The case of Mason v. Miles, supra, is an authority for vacating the judgment as to some of the defendants, and leaving it to stand as to others. The act of 1879, ch. 257, professing “to cure irregularities in certain judicial proceedings/'’ cannot help the plaintiffs in this case; for that in terms applies only to cases in which the summons was issued, rightly naming the parties, but by some accident was omitted to be served. There is no error, and the judgment of the court below must he affirmed. No error. Affirmed.