Wainwright v. Wilkinson

Bryan, J., delivered the opinion of the Court. Emily Wainwright, an infant, brought a suit by her prochein ami, Mary A. Barldey, in the Superior Court of Baltimore City, against the appellee. She employed an attorney, and requested him to dismiss the suit, which he accordingly did. After a considerable time, a motion was made in the name of the plaintiff, by her prochein ami, asking the Court to strike out the entry of “ off,” which had been made in the case, and to re-instate it on the docket for trial. This motion was overruled. The prochein ami was the only person who was authorized to prosecute the suit. She is responsible for costs, and is charged with the duty of employing an attorney, and protecting the interest of the infant. The latter, [148] until she reached the age of twenty-one years, was incompetent to appoint an attorney, or to take any step in the suit which could bind her rights. Greenwood vs. Greenwood, 28 Md., 386; De Ford vs. State, use of Keyser, et al., 30 Md., 200; Baltimore & Ohio R. R. Co. vs. Fitzpatrick, 36 Md., 624. The appointment of an attorney hy the infant being nugatory, his dismissal of the suit was simply void. The Court was, therefore, in error, when it refused to re-instate the case. This case has been compared in the argument to a non-suit regularly entered. .We do not so regard it. When the plaintiff in a cause submits to a non-suit, it is well settled that he has no right of appeal. This is an appeal from an order of the Court refusing to correct an entry of non-suit, made against the will of the only person who had the right to authorize it. The prochein ami had as much right to the protection of the Court in this particular as in any other. The erroneous entry subjected her to a liability for costs, and an error of the Court in refusing to relieve her ought certainly to entitle her to redress. It has been settled by many decisions of this Court, that appeals may he taken from refusals to strike out judgments, as well as from orders striking them out. In Montgomery vs. Murphy, 19 Md., 576, this Court entertained an appeal from the refusal of the Court below to strike out a judgment by confession erroneously entered, and being satisfied of the error, ordered the judgment by confession to be stricken out. In Powhatan Steamboat Company, Garnishee, &c. vs. Potomac Steamboat Company, et al., 36 Md., 238, the appeal was from an order refusing to strike out and set aside a judgment of condemnation in attachment; and the order below was reversed. In Johnson, Garnishee, &c. vs. Lemmon, 37 Md., 336, there was a similar appeal and a reversal in this Court. We do not think that the circumstances of the case show laches on the part of the prochein ami in applying to have the entry stricken out. [149] (Decided 14th May, 1884.) It is stated that the infant, after she arrived at the age of twenty-one, ratified and approved the act of her attorney. It was not in her power to do so. Her act in appointing an attorney was void, and in violation of the rights of her prochein ami. It is in the power of the Court to remove the prochein ami, hut while she sustains such relation, she must have the entire control of the conduct of the suit. It is competent for the Court in this case to discharge the prochein ami, and give the plaintiff control over her suit, inasmuch as she has now reached the age of twenty-one years; but it must make such equitable order as will protect the prochein ami from costs already incurred, and relieve her from liability in the future. In the case cited from Rolle’s Abridgment, 288 D, it appears that the guardian who was prosecuting a suit for an infant, was removed at the infant’s request, and the suit was dismissed because the infant did not wish it prosecuted. If this case could be understood as deciding that an infant could under any circumstances take charge of his suit, and control its management, we should refuse to he hound by its authority. Judgment reversed, and cause remanded.