McAllister v. Lancaster County Bank

• Decision Date: 19 December 1883
• Citation: 18 N.W. 57,15 Neb. 295
• Parties: JOHN MCALISTER, PLAINTIFF IN ERROR, v. LANCASTER COUNTY BANK ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

18 N.W. 57

15 Neb. 295

JOHN MCALISTER, PLAINTIFF IN ERROR, v. LANCASTER COUNTY BANK ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

December 19, 1883

ERROR to the district court for Lancaster county. Heard below before POUND, J.

AFFIRMED.

Brown & Ryan Brothers, for plaintiff in error.

J. R Webster, for defendant in error.

OPINION

LAKE, CH. J.

This is a petition in error from Lancaster county. The object of the action in the court below was to have a judgment of foreclosure and conveyances of the mortgaged premises thereunder set aside and held for naught as to the plaintiff who, at the time of the foreclosure proceedings, was the owner of the fee. The theory of the plaintiff's claim to this relief is, that the judgment in question is void for having been rendered on default and while he was under the disability of insanity.

The record shows that the plaintiff's disability, and that he was under guardianship, were known and observed in bringing the action. Accordingly, both he and his guardians were duly notified by the service of a summons upon them. But they made no appearance, nor was a guardian ad litem appointed, and in due time their defaults were entered followed by a judgment of foreclosure in the usual form.

Counsel for the plaintiff seem to suppose that the rule respecting the jurisdiction of courts to render judgments against insane persons is the same as that which governs in the case of infant defendants; and that the court having proceeded without the appointment of a guardian ad litem, and an answer by him, the judgment, if not void, is at least voidable. If this were so, the plaintiff would probably be entitled to a cancellation of the judgment and of the sales made under it, upon just and equitable terms.

But in this supposition counsel labor under a mistake. The court by its process acquired jurisdiction of the plaintiff, and although the want of an answer by a guardian for the suit may have rendered the judgment erroneous, it is neither void nor voidable. Freeman on Judgments, 152. It was the duty of the general guardians of the plaintiff on being summoned to appear and defend their ward's interests. Sec. 32, ch 34, Comp. Statutes. Having failed to do so, however, the court might have appointed a guardian specially for that suit, and required of him an answer putting in issue the allegations of the petition. Such, doubtless, would have been good practice, and...