Curtis v. Curtis
| Decision Date | 07 March 1930 |
| Docket Number | No. 86,Jan. Term, 1930.,86 |
| Citation | 229 N.W. 622,250 Mich. 105 |
| Parties | CURTIS v. CURTIS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kent County, in Chancery; Willis B. Perkins, Judge.
Divorce suit by Willet Curtis against Marion Curtis. From an order denying defendant's petition to vacate decree of divorce theretofore granted, and appointing a guardian ad litem as requested by plaintiff, petitioner appeals.
Order set aside, and proceeding remanded.
Argued before the Entire Bench, except McDONALD, J.Dunham & Cholette, of Grand Rapids (L. Frank McKnight, of Grand Rapids, of counsel), for appellant.
Joseph R. Gillard, of Grand Rapids, for appellee.
Defendant in this case petitioned the Kent circuit court, in chancery, to vacate the decree of divorce granted plaintiff, January 26, 1928, on the grounds that she then was, and is now, a minor, and entered no appearance; that no guardian ad litem was appointed, and plaintiff, after filing the bill, cohabited with her and assured her that the suit for divorce had been abandoned. Plaintiff answered the petition, denied the alleged cohabitation and assurance, set up his subsequent marriage, and asked the court to appoint a guardian ad litem, nunc pro tunc, as of the time of filing the bill, although expressing the belief that defendant was not then a minor. The court denied the petition to vacate the decree and appointed a guardian ad litem, as requested by plaintiff. Petitioner appealed.
No testimony was taken upon this application and, therefore, in considering the appeal we take as true the averments of petitioner's age. The order appointing the guardian ad litem, after decree, was a nullity. The appointment served no purpose and besides could not be entered nunc pro tunc.
In Freeman v. Wayne Probate Judge, 230 Mich. 455, 203 N. W. 158, we pointed out the office of a nunc pro tunc order and stated that it is permitted to perfect a record of judicial action taken and not to supply some judicial action omitted.
The parties were married June 15, 1925, and a child was born July 28, 1926. The bill for divorce was filed October 6, 1927, and the decree granted January 26, 1928. The petition to vacate the decree was filed September 7, 1929.
The statute, C. L. 1915, § 12381, provides that, after service of process upon an infant defendant the suit shall not be further prosecuted until a guardian ad litem is appointed. The court had jurisdiction of the subject-matter and of the parties. Defendant, though an infant, was before the court by summons, duly served upon her. The court was not informed of the fact of defendant's age. It was the duty of plaintiff to have informed the court of the fact 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. When a decree is voidable for error in procedure, it is a matter of judicial discretion whether it shall be vacated. Petitioner's delay in bringing the matter to the attention of the court is not wholly excused by her infancy. While an infant may not be held guilty of laches, yet inexcusable delay has a bearing upon judicial discretion. That the failure to appoint a guardian ad litem does not render the decree void is well settled.
In Schimpf v. Wayne Circuit Judge, 129 Mich. 103, 88 N. W. 384, it was held (syllabus):
‘A judgment against an infant is not void because no guardian ad litem was appointed to represent him, but is voidable merely.’
In Manfull v. Graham, 55 Neb. 645, 76 N. W. 19, 20,70 Am. St. Rep. 412, it was stated:
‘Where infants are regularly summoned, the failure to appoint a guardian ad litem is an error only, and does not render void the judgment entered.’
In Linn v. Collins, ...
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