Robinson v. Hood

Sherwood, C. J. i. bill of exoepTI0NS — 1. Motion for new trial not incorporated in the bill of exceptions, we, therefore, cannot n°tiee any of the alleged errors occurring ¿ t the trial. Jefferson City v. Opel, ante p. 394; Collins v. Barding, 65 Mo. 496; Stevenson v. Saline County Ib. 425. 2. infancy : practice. 2. It is, however, insisted that the judgment must be reversed because of the grounds urged by the motion in arrest. As to Sarah A. Robinson, one of the minors who became of age-pending the trial, it was perfectly competent for the court to permit her to come in- and sue as an adult co-plaintiff. This objection is absolutely frivolous. [661] s.-: curator: next friend: waiver: jeofails, The same may be said of the infants suing by their curator instead of their ^cxt friend. If the infants had no legal capacity to sue, the objection should , , , , . ** have been taken by demurrer or answer. Defendants, failing to thus object, must be deemed to have Avaived any objection in this particular. 2 Wag. Stat., section 10, page 1015 ; Jones v. Steele, 36 Mo. 324. Besides, •our statute of jeofails, (2 Wig. Stat., section 19, page 1036,) provides that, if the verdict or judgment be for the infant, ns in the present instance, such judgment shall not be stayed, reversed, impaired or in any way affected because the infant appeared by attorney. The statute would seem to be broad enough to reach a case of this sort, where the judgment goes in favor of the infant, even if the appearance by curator was unauthorized. But be this as it may, •our statute (2 Wag. Stat., section 11, page 674,) expressly authorizes guardians and curators to prosecute and defend for their minors. Larned and Wife v. Renshaw, 34 Mo. 458, and cases cited. ,The provisions of the statute to which defendants call our attention (2 Wag. Stat., sections 1-4, page 1003,) do not apply where there is already a duly appointed guardian or curator. The result is that the judgment must be affirmed. All concur. Affirmed.