Cohen v. Home Life Ins. Co., 122.

CourtSupreme Court of Michigan
Citation273 Mich. 469,263 N.W. 857
Docket NumberNo. 122.,122.
PartiesCOHEN v. HOME LIFE INS. CO. et al.
Decision Date10 December 1935


Suit by Theresa Cohen, by Edward Leed, next friend, against the Home Life Insurance Company and another. From a judgment of dismissal, plaintiff appeals.


POTTER, C. J., and BUSHNELL and EDWARD M. SHARPE, JJ., dissenting.

Appeal from Circuit Court, Wayne County, in Chancery; Arthur Webster, judge.

Argued before the Entire Bench.

Maurice D. Smilay, of Detroit, for appellant.

Dudley E. Whiting, of Detroit, for appellee Home Life Ins. Co.

WIEST, Justice.

The following opinion was prepared by the late Justice NELSON SHARPE and I adopt it, with slight addition thereto:

Prior to July 5, 1933, Theresa Cohen was adjudged to be a mentally incompetent person and was committed to the Ypsilanti State Hospital for the insane. On that day a suit was brought against her by the defendant insurance company to foreclose a mortgage on certain real estate owned by her, and the summons was served on her at the hospital. No guardian ad litem was appointed to act for her. Her default was entered, decree rendered on May 10, 1934, sale had, and an order entered in confirmation thereof on July 16, 1934.

On August 28, 1934, a motion was filed in the foreclosure suit by Edward Leed, guardian of Theresa Cohen, for leave to appear for her, to set aside her default for the reason that no guardian ad litem had been appointed for her, and for the appointment of a guardian ad litem to defend in her behalf. It was denied on October 9, 1934. On January 14, 1935, the bill of complaint herein was filed to set aside the decree of foreclosure and the sale based thereon for the reason that the failure to appoint a guardian ad litem for the plaintiff rendered the proceedings void and of no force or effect. On motion of the attorney for the insurance company it was dismissed for the reason as stated by the trial court-‘that my denial of defendant's (plaintiff in this suit) motion in the foreclosure suit to set aside default and decree based thereon is res adjudicata of all matters stated in the bill of complaint in this cause.’

Plaintiff has appealed therefrom.

Section 14038, Comp. Laws 1929, reads in part as follows: ‘After the service of process or declaration, if the suit be commenced by declaration, against a defendant who is an infant, or who is insane or otherwise mentally incompetent, said suit shall be defended by the guardian of the estate of such defendant, if there be one; otherwise such suit shall not be further prosecuted until a guardian ad litem for such person shall be appointed, in the manner following.’

The statute applies alike to infants and persons who are insane. In Schimpf v. Wayne Circuit Judge, 129 Mich. 103, 88 N.W. 384, it appeared that a judgment had been rendered against an infant without the appointment of a guardian ad litem for him. The court said, 129 Mich. 103, at page 104, 88 N.W. 384:

‘There can be no doubt from the record that due service of the process was had upon the defendant. The judgment was not void because of the failure to appoint a guardian ad litem, but voidable merely.’

This holding was approved in De Guzman v. Wayne Circuit Judge, 225 Mich. 606, 610, 196 N.W. 523.

In 14 R.C.L. p. 615, in discussing the validity of judgments or decrees against insane persons, the writer states ‘that the rule is substantially uniform that such judgments or decrees are not void but merely voidable under circumstances that would render any other judgment or decree voidable, and that they will be sustained when collaterally attacked.’ See, also, Graham v. Nippress, 222 Mich. 386, 192 N.W. 683.

The petition filed by plaintiff's guardian to set aside her default was, in effect, one to vacate the decree entered. It was denied by the court. As was said by this court in Knoth v. A. Harvey's Sons Mfg. Co., 212 Mich. 415, 421, 180 N.W. 367, 369:

‘The matter having once been litigated, and a determination having been reached thereon, and no appeal having been taken from that determination, the parties are not now entitled by independent bill to relitigate the same questions, even though additional facts are set up in the bill and additional prayers appended thereto.’

In Curtis v. Curtis, 250 Mich. 105, 229 N.W. 622, 623, the mentioned statute was again considered and there held that: ‘It was the duty of plaintiff to have informed the court of the fact [infancy of defendant] and to not proceed without the appointment of a guardian ad litem. Failure to do so, however, did not oust the court of jurisdiction, for the statute mentioned is procedural only, but did render the decree voidable if questioned in a direct proceeding such as this.’ (Petition to vacate decree.)

The bill herein cannot serve the purpose sought, for review now, if any, can only be had by application for and allowance of a delayed appeal as provided by court rule No. 60.

The decree dismissing the bill is affirmed with costs to defendant Home Life Insurance Company.

NORTH, FEAD, and BUTZEL, JJ., concurred with WIEST, J.

POTTER, Chief Justice (dissenting).

The facts in this case are not in dispute:

‘The plaintiff is the owner of the following described property: Lot forty (40) Virginia Park Subdivision of part of quarter section 55, 10,000 acre tract, according to the plat thereof as recorded in Liber 28 on page 80 of plats, and being known as 1469 and 1471 Virginia Park, in the City of Detroit, County of Wayne and State of Michigan. That the defendant, the Home Life Insurance Company, a New York Corporation, has a mortgage on said premises which mortgage is dated March 9th, 1928, and is for the sum of nine thousand ($9,000.00) dollars. That the plaintiff is a mentally incompetent person, declared as such by the Probate Court for the County of Wayne and committed by said Court as such to the Ypsilanti State Hospital for the Insane prior to July 5, 1933.

‘That on July 5th, 1933, the said defendant, Home Life Insurance Company, commenced foreclosure of said mortgage in the Wayne Circuit Court in Chancery by filing a bill of complaint and having summons issued, being file No. 217,469; that said summons was served on the defendant by authority of the physician in charge at the Ypsilanti State Hospital for the Insane; that no guardian ad litem was appointed to defend in behalf of said mentally incompetent, although the defendant must be deemed to have had knowledge that said defendant, plaintiff in this suit, was an insane person; that on May 10, 1934, a decree of foreclosure was entered by default, ordering the sale of said property to the highest bidder; that on July 16, 1934, a report of sale and an order confirming same to the plaintiff, the defendant in this suit, was filed in the Wayne Circuit Court; that on August 28, 1934, a motion was filed in the foreclosure suit by defendant's guardian, praying that he be allowed to enter his appearance in behalf of the insane person, and further to set aside the default of the defendant, plaintiff in this suit, the decree based thereon, and for the appointment of a guardian ad litem to defend in behalf of the insane defendant. Such motion was denied by the Circuit Court on the 9th day of October, 1934.

‘That on January 14, 1935, Edward Leed was appointed guardian ad litem for the plaintiff, and on the same day a bill of complaint was filed in the Wayne CircuitCourt to set aside the decree of foreclosure, and the sale based thereon; that a motion to dismiss said bill of complaint was filed January 17, 1935, and an order dismissing same was entered January 28, 1935, from which order plaintiff appealed.’

July 5, 1933, the foreclosure bill was filed. May 10, 1934, the foreclosure decree was entered. July 16, 1934, report of sale and order confirming the same was made and entered. August 28, 1934, motion was made by the general guardian of defendant to set aside defendant's default and permit defendant's general guardian to appear and/or to set aside defendant's default, and appoint a guardian ad litem for defendant to defend in her behalf. We assume the summons issued was served upon the insane defendant prior to the entry of her default, and plaintiff in the foreclosure suit had knowledge upon the filing of the foreclosure bill that defendant was insane and confined as such in the Ypsilanti State Hospital for the insane.

The question is whether defendant's guardian ad litem may have the remedy sought for the admitted wrong erroneously inflicted by the trial court's disregard of the provisions of the statute directing that in all cases prosecuted against an insane defendnat such defendant's rights shall be protected by a guardian ad litem appointed by the court. The principles involved and the policy of the court as hitherto declared and followed in administering the principles of equity jurisprudence, as modified by express statutory enactment, are of infinitely more importance to the public than the value of the property rights of defendant sought to be taken in violation of the statute and, as I think, without due process of law.

‘Every man is entitled to his day in court before his rights can be finally disposed of; even the Legislature cannot divest him of this right.’ Ehlers v. Stoeckle, 37 Mich. 261.

‘A sentence of a court, pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.’ Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914.

An insane person, one non compos mentis, is incapable of acting to protect his rights from the rapacity of those instituting suits against him. At common law, the rights of persons non compos mentis were peculiarly under the protection of the King, who, from the nature of the organization of the English government, was bound, as parens patriae, to protect their rights, as helpless subjects, within his kingly realm. From the...

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