Arizona Eastern Railroad Co. v. Carillo

• Decision Date: 01 June 1915
• Docket Number: Civil 1431
• Citation: 17 Ariz. 115,149 P. 313
• Parties: ARIZONA EASTERN RAILROAD COMPANY, Appelant, v. HILARIO CARILLO, a Minor, by W. D. MOORE, His Guardian ad Litem, Appellee
• Court: Arizona Supreme Court

149 P. 313

17 Ariz. 115

ARIZONA EASTERN RAILROAD COMPANY, Appelant, v. HILARIO CARILLO, a Minor, by W. D. MOORE, His Guardian ad Litem, Appellee

Civil No. 1431

Supreme Court of Arizona

June 1, 1915

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.

Mr Eugene S. Ives and Messrs. Rawlins & Little, for Appellant.

Mr. R H. Brumback, for Appellee.

OPINION

ROSS, C. J.

On December 13, 1913, appellee, by his guardian ad litem, filed his complaint against appellant, claiming damages for personal injuries sustained by him while in the employ of appellant. On the same date, as appears from the record, the appellee's attorney filed a petition entitled "Hilario Carillo, a Minor, Plaintiff, v. Arizona Eastern Railroad Company, a Corporation, Defendant," representing that appellee, "the plaintiff in this action against the railroad company," was a minor under the age of 20 years, and asked the court to appoint W. D. Moore his guardian ad litem "for the purpose of filing a complaint" and to represent him in said action, stating that said Moore was willing to act as such guardian ad litem. On the same day, an order entitled as the petition and complaint, was made by the court, in which it was recited:

"Upon reading . . . the application, . . . it appearing to this court that good and sufficient grounds exist for the appointment of a guardian ad litem to represent said infant in said action, . . . it is ordered that said Walter D. Moore be and he is hereby appointed guardian ad litem for said infant in said action."

Thereafter appellant filed its motion to set aside the appointment of guardian ad litem, setting up several grounds, but those not apparent on the face of the papers are not properly before us as the motion was not verified. The grounds apparent are that petition does not state facts sufficient to support the order appointing the guardian because: (a) Plaintiff being over 14 years of age was entitled to choose his own guardian; and (b) that no written consent had been filed by the guardian. Appellant on same day filed its unverified motion to dismiss the action upon the same grounds as contained in motion to set aside the appointment of guardian, and in addition set up an alleged release executed by appellee and his father and mother.

Both motions were overruled, and appellant answered: (1) By special demurrer to complaint on the grounds, (a) it does not appear that W. D. Moore was appointed guardian ad litem; (b) or was authorized to commence or prosecute the action; and (c) that plaintiff has not legal capacity to sue. (2) By general demurrer. (3) Setting up in bar of the action an acquittance of date December 1, 1913, signed by appellee, his father and mother, whereby for the consideration of $820, the appellant was released of all claims and causes of action on account of appellee's injuries, and alleged that such settlement had not been disaffirmed. The case was tried to a jury which returned a verdict in favor of appellee for $7,200, less $820. A motion for new trial was overruled. This appeal is prosecuted from this order and from the judgment upon the verdict.

The appellant has assigned 24 errors, but they may be reduced to two propositions: (1) The appointment of the guardian ad litem and his legal standing before the court. (2) The legal effect, under the facts in this case, of the contract of release and settlement.

There is no dispute as to the infancy of appellee at the time of the institution of this suit, and therefore of the necessity of the appointment for him of a guardian ad litem for the purpose of bringing the action. By paragraph 412 of the Civil Code of 1913, the court is authorized to appoint a guardian ad litem upon the petition of any relative or friend of the minor, or upon his own petition if he be over 14 years old, for the purpose of bringing a civil action in such court if the minor shall desire so to do. Although the petition asking the appointment of the guardian in and of itself failed to exhibit to the court facts justifying the order of the court appointing the guardian, it made reference to a complaint entitled in the case setting forth the cause of action, which, taken in connection with the fact of infancy set out in the petition, authorized the appointment of W. D. Moore as such guardian. But appellant contends that this cannot be so, for paragraph 414, Id., provides that no person shall be appointed guardian ad litem, except upon his written consent, and that, as at the time of his appointment as guardian ad litem, Moore had not given his consent in writing, the court was without jurisdiction to make the appointment. The evident purpose of the law in requiring the written consent of the person appointed guardian ad litem is to secure jurisdiction over his person, as the appointment under the statute is not made upon his application, but upon the application of a relative or friend of the minor, or it may be made upon the application of the minor, if over the age of 14 years. If, however, the guardian ad litem actively enters, as in this case, upon the discharge of the duties imposed by his appointment, by filing suit and prosecuting it, he has voluntarily appeared and submitted to the jurisdiction of the court, and is therefore amenable to the orders and judgments of the court as much so as he would be by virtue of any written consent to act, and any judgment rendered would be just as binding upon the ward.

The other point that the application was not made by the minor, he being at the time over 14 years of age, might require serious consideration, if there was a controversy, as between a requested appointment by him and one by his relative or friend. The infant appellee has made no such question. However, before the case was finally submitted to the jury, the appellee filed a request for the appointment of Moore as his guardian ad litem, and the latter filed his written consent to act. Thus, though the steps taken in the appointment of the guardian may have been erroneous, the error was fully corrected before the verdict and judgment. That the defect in proceeding is not jurisdictional seems to be well settled. Johnston v. Southern Pac. Co., 150 Cal. 535, 11 Ann. Cas. 841, 89 P. 348; Skinner v. Knickrehm, 10 Cal.App. 596, 102 P. 947; Downing v. Thompson, 28 Ky. Law Rep. 1182, 92 S.W. 290; McDonald v. Weir, 76 Mich. 243, 42 N.W. 1114; 22 Cyc. 658.

The appellant's objections to the manner of the guardian ad litem's appointment do not go to the merits of the case, but are directed at the irregularities in the proceedings, and under the Constitution (section 22, article 6) we are forbidden the right to reverse the judgment for technical error in the proceedings, when upon the whole case it shall appear that substantial justice has been done. The irregularities complained of in the appointment of the guardian could not possibly prejudice the rights of appellant inasmuch as they did not bear upon or relate to the merits of the case, and only involved the status of plaintiff as a party before the court.

Some time after the injury complained of, and before the institution of this action, the appellant paid to appellee or to his parents, or both, the sum of $820, for which they jointly executed to appellant a complete and full release of "any and all claims and causes of action on account of all personal injuries received" by him by reason of the things alleged in his complaint. The payment of the money and the execution and delivery of the release of the purport above stated are unquestioned. Likewise, it is admitted that at the time of such settlement the...