The opinion of the court was delivered by
Williams, Ch. J.This case comes before us on exceptions to the decision of the county court in refusing to dismiss the cause on motion of the defendant. The defendant, an infant, was sued before a justice of the peace, and appeared before the justice, but not by guardian; a judgment was rendered against him, from which he took an appeal; at the county court a judgment was again rendered against him; but, as he appeared by attorney, and not by guardian, on a writ of error brought by him the judgment of the county court was reversed, and the cause remanded to that court, where a guardian was appointed, who .made the motion to dismiss now under consideration.
A judgment rendered against an infant, who appears by attorney, is not void, but voidable. If, before final judgment against him, he becomes of age, or has a guardian assigned to him, he can avail himself of every proper defence. His incapacity ceases, and he has every ability, which is necessary to enable him to make a suitable *293defence. When an infant brings a writ of error to reverse a judgment rendered against him, the court only vacate the judgment, but do not set aside, the proceedings altogether. In the case of Dewitt v. Post, 11 Johns. 450, on a reversal of a judgment for infancy, the defendant was ordered to plead de novo. In the case of Harrington v. Towles, decided in Bennington county in 1831, which was a similar case, the cause was remanded for the county court to proceed and appoint a guardian. A similar course was taken in this case at the last term. The court, who, on reversing a judgment, are to proceed and render such a judgment as the court below should have rendered, having all their proceedings before them, the judgment rendered by the justice, the appeal and the proceedings in the county court, instead of dismissing the cause and rendering a final judgment for the defendant, remanded it to the county court for trial. This would, of itself, justify the judgment of the county court in refusing, on this motion, to dismiss the cause.
Farther, we cannot consider this as now an open question. The very point, now made on this motion, was made in the argument on the writ of error at the last term. And in the case of Blackmer v. Dow, decided in Chittenden county in 1836, a writ of audita querela was brought to set aside a judgment of the county court, rendered in a suit originally brought against an infant before a justice of the peace. The infant had appeared and defended before the justice by attorney, and judgment was rendered against him ; from this judgment an appeal was taken, and the action was entered in the county court .and continued; and pending the suit in the county court the infant became of age. The attorney, who had appeared while he was an infant, withdrew his appearance on the docket, and a judgment was rendered by default against the defendant. He brought a writ of audita querela to set aside this judgment, claiming that the judgment rendered against him before the justice was void. Much the same arguments were urged in that case, as in this, — the want of discretion in the infant to defend himself, to take an appeal, &c. The. court did not sustain the audita querela, because the complainant became of age, before the judgment was finally rendered against him in the county court, and he had a suitable opportunity to appear and make defence.
The judgment of the county court is affirmed.