Evans v. Brooke

Gilbert, Justice,

dissenting. As I view the record, the judgment of the trial judge should be affirmed. Although the judgment leads to results which could not have been reached except by agreement, the undisputed fact is that all the parties did agree to the verdict and judgment, the minors through their next friend. The motion to set aside, when reduced to its essence, is that the agreed *209verdict and judgment should be set aside because the petitioners did not consent thereto. The petitioners were minors who appeared in court through their next friend, an adult sister. The agreed verdict and judgment reached, in a substantial part, the very result which they sought in the suit instituted by them. The outstanding deeds were canceled. They proceeded through their next friend for the very reason that minors are not, as a general rule, bound by their own agreements. When their next friend, through her counsel, agreed to the verdict and judgment, that, as a matter of law, amounted to an agreement by the minors. In Gentle v. Georgia Power Co., 179 Ga. 853, 854 (177 S. E. 690), it was said: “An infant is bound by a judgment entered in- a case brought by him through a next friend, as though he were an adult; this in the absence of gross laches or fraud or collusion. Kansas City &c. R. Co. v. Morgan, 76 Fed. 429 (21 C. C. A. 468); Colson v. Tooke, 18 Ga. 742; Evans v. Collier, supra; Reeves v. Lancaster, 147 Ga. 675 (95 S. E. 246); Dampier v. McCall, 78 Ga. 607 (3 S. E. 563).” There being no sufficient allegation of fraud on the part of the next friend, the minors are bound by her agreement. It may be that the property set apart as a year’s support could not be made liable for the funeral expenses of the mother, as a matter of law; but certainly the children have the power to agree that such funeral expenses should be paid out of the year’s support. Partition- could not have been had without agreement, but they did pray for a decree declaring title in them “in accordance and proportion with the allegation of the petition as to their ownership. thereof.” When that was accomplished, partition could legally follow, even if not provided for in the judgment.