deliveeed the opinion of the 'Coubt.
We do not think that the evidence shows that the judgment was fraudulently obtained, nor did the court below so find. Hone of the witnesses testified that the judgment was entered without the hearing of any evidence, although the court so found.
As to whether the court heard evidence, there was no ■testimony. It does appear from the evidence that there was an agreement between the counsel for the respective parties that a judgment for $125 should be entered for the plaintiff. The next friend, by whom the suit was brought, denies that she agreed to this, and denies also that when? she ■received the money she knew that it was paid under such judgment.
Two witnesses contradicted her as to this.
We do not think that the weight to be given the recital •in the record of the judgment that the court “ after hearing the evidence ” found the defendant guilty, was overcome by the testimony in the present case.
The testimony shows that a trial by jury was waived; that the amount of the recovery had been agreed upon before the hearing; that only the sum of $125 was asked for, and that a recovery for that sum not being contested, judgment for such amount was entered.
The preponderance of the evidence is that the next friend of the infant, his mother, and the defendant, agreed that a judgment for $125 should be entered, and that the judgment was the result of such agreement, and not of any contest or hearing of evidence in court.
An infant is not bound by his agreement to compromise, or to refer to arbitration, or the result of an award made thereunder. Baker v. Lovett, 6 Mass. 78; Wainwright v. Kelly, 62 Md. 146.
An infant is not considered as having sufficient discretion to conduct a suit in person; suit is therefore brought in his name by his guardian or next friend. Am. & Eng. Encv. of Law, Yol. 10, p. 679.
The next friend is regarded as an officer of court, and is subject to, and may be removed by, the court.
Ho one, neither guardian nor next friend, can admit away the rights of an infant. Chudleigh v. C., R. I. & P. Ry. Co., 51 Ill. App. 491; C., R. I. & P. R. R. Co. v. Kennedy, 70 Ill. 350-364; A., T. & S. F. Ry. Co. v. Elder, 50 Ill. App. 276; Hitt v. Ormsbee, 12 Ill. 166; Lloyd v. Kirkwood, 112 Ill. 329.
The next friend can not compromise or settle the claim for which suit is brought. Tripp v. Gifford, 29 N. E. 208; 155 Mass. 108.
Undoubtedly he may negotiate for a settlement, but to actually make one which will bind the infant, he has no power.
While, before the judgment under consideration was had, the form of a judicial contest, hearing and determination were gone through, yet it is evident that these were formal, only. Practically, the judgment was a result of a compromise made by the next friend and the defendant.
The recital, “ after hearing the evidence,” is not such a record as in view of what is shown in the present case, makes the judgment conclusive. The recital may be entirely true, and yet cover very little, nothing essential to a full hearing and an intelligent judgment as to the rights of the plaintiff.
As the infant does not appear to have received the benefit of the money paid, the question of his obligation to return the same before having the judgment under which it was paid set aside, does not arise.
The decree of the Superior Court setting aside such judgment is therefore affirmed.