Crockett v. Drew

Dewey, J. A judgment rendered against an infant, for whom no guardian ad litem has been appointed, is liable to be reversed by writ of error. Valier v. Hart, 11 Mass. 300. It is objected, that the judgment in the scire facias was based upon the judgment in the original action, and therefore the defence is not now open, but the party should have sued out his writ of error to reverse the first judgment. It is undoubtedly true that a judgment rendered in an action of debt, brought upon a former judgment which was erroneous, cannot be reversed for the error in the former judgment. Hawes v. Hathaway, 14 Mass. 233. But that is not like the present case; because here was no judgment rendered in the original action against [400] the plaintiff in error, which could be enforced against him. His personal liability only accrued upon the judgment on the scire facias. And further, the error now relied upon arose in the proceedings on the scire facias. It was in that process that he personally appeared, and not by his guardian. He had the right, by statute, to make various defences against such scire facias, and to show, in any proper way, that he was not liable to a judgment against himself personally. But as he was an infant, the defendant in error should have procured the appointment of a guardian ad litem, before taking judgment against him. Judgment reversed.