Phelps v. Heaton
| Decision Date | 25 May 1900 |
| Docket Number | 12,086 - (79) |
| Citation | 82 N.W. 990,79 Minn. 476 |
| Parties | WEALTHY PHELPS v. GEORGE S. HEATON and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Blue Earth county to reform a deed and to bar the title of Julius Heaton and three others minors, in the premises. The case was tried before Severance J., who found in favor of plaintiff, and judgment pursuant to the findings was entered. Subsequently to the coming of age of the minors an order was made vacating the judgment, from which order plaintiff appealed. Affirmed.
Vacating Judgment -- Notice to Attorney of Nonresident.
Notice of a motion to vacate a judgment in favor of a nonresident plaintiff may be served on his attorney of record, although more than two years have elapsed since the entry thereof.
Infant -- No Waiver of Right Possible.
An infant defendant is incompetent to waive or admit service of the summons upon him, or to confer jurisdiction upon the court by a voluntary appearance.
Jurisdiction over Infant -- Guardian ad Litem.
Service of summons upon an infant defendant in the mode authorized by the statute must precede the appointment of a guardian ad litem for him, and though such guardian be appointed, and he appears and represents the interests of the minor, the appointment and all subsequent proceedings in the action including the final judgment, are void as against the infant not served with process or summons.
Pfau & Pfau and L. W. Prendergast, for appellant.
An attorney can act during pendency of the action, or within two years after judgment rendered, to the extent that he may within that time receive the money and satisfy the judgment. There is no presumption that beyond this time he has authority to act in any capacity whatever. Plaintiff was not a resident of the state. If the relationship of client and attorney did not then exist, there was no duty resting on the attorney to give notice to his client. There can be no presumption that notice was given, and even if notice was received there would be no presumption that it was served within the time required by law. Service in such case must be made on the party in person. Savings Bank of St. Paul v. Authier, 52 Minn. 98; Berthold v. Fox, 21 Minn. 51; G.S. 1894, § 6184; Bray v. Doheny, 39 Minn. 355; Hinkley v. St. Anthony Falls W.P. Co., 9 Minn. 44 (55); Sheldon v. Risedorph, 23 Minn. 518; Bathgate v. Haskin, 59 N.Y. 533; In re Grundysen, 53 Minn. 346; McLain v. Watkins, 43 Ill. 24; Walradt v. Maynard, 3 Barb. 584, 587; Benedict v. Smith, 10 Paige, 126; Jackson v. Bartlett, 8 Johns. 281; Cruikshank v. Goodwin, 66 Hun, 626. After judgment entered, where there is nothing further to be done in the matter of execution, etc., the employment of the attorney presumptively ceases, and notice to an attorney of a motion to set aside judgment is no notice to the former client, unless continuance of the relation is affirmatively shown. Grames v. Hawley, 4 McCrary, 61. The court had no authority to set aside this judgment after nine years, unless on the ground that no jurisdiction had been acquired over the moving defendants. The statutes give no authority to set aside judgment after this lapse of time for any reason. In equity the court may not set aside its decree after the term in which it was entered. Cameron v. M'Roberts, 3 Wheat. 591. The court could have no right to take in consideration on this motion any matters save those affecting the jurisdiction. The moving parties attacked the judgment for other grounds. 1 Story, Conf. Laws, 607; Wimberly v. Hurst, 33 Ill. 166; Conner v. Hutchinson, 12 Cal. 127; Bissell v. Briggs, 9 Mass. 461; D'Arcy v. Ketchum, 11 How. 165, 175; Dorman v. State, 56 Ind. 454, 457. In absence of allegations that the guardian ad litem was acting in collusion with plaintiff or by her authority, or that plaintiff was a party to the alleged frauds, the statement in the motion of acts done or omitted on part of the guardian is inconsequent and conveys nothing. Meka v. Brown, 84 Iowa 711. In any event, the negligence of the attorney is uniformly treated as the negligence of the client. Merritt v. Putnam, 7 Minn. 399 (493); Austin v. Nelson, 11 Mo. 192; Matthis v. Inhabitants, 62 Mo. 504; Jones v. Leech, 46 Iowa 186; Spaulding v. Thompson, 12 Ind. 477.
If an infant would disaffirm his contract, and receive back his property, he must refund what he has received. Kerr v. Bell, 44 Mo. 120; Highley v. Barron, 49 Mo. 103. A minor must disaffirm within a reasonable time after coming of age. Goodnow v. Empire L. Co., 31 Minn. 468; Cochran v. Toher, 14 Minn. 293 (385); Derosia v. Winona & St. P.R. Co., 18 Minn. 119 (133). If, when he attains his majority, an infant has the money or property received in consideration for his deed or contract, he must return it, or so much of it as he has left, before he will be allowed to disaffirm. Chandler v. Simmons, 97 Mass. 508; Green v. Green, 69 N.Y. 553; Becker v. Pugh, 9 Colo. 589; Lawson v. Lovejoy, 8 Me. 405; Tyler, Infancy (2d Ed.) § 37. The long silence, laches, and inexcusable delay amount to express ratification of the proceedings had in 1889. Where an infant, after coming of age, uses the consideration and allows land to increase in value, and does not disaffirm, it is delay so unreasonable as to amount to waiver, and is equivalent to express ratification. O'Dell v. Rogers, 44 Wis. 136; Goodnow v. Empire L. Co., supra; Jenkins v. Esterly, 24 Wis. 340; Dolph v. Hand, 156 Pa. St. 91; Lenhart v. Ream, 74 Pa. St. 59. See also Spaulding v. Farwell, 70 Me. 17; Godden v. Kimmell, 99 U.S. 201; Frost v. Walls, 93 Me. 405; 2 Pomeroy, Eq. Jur. §§ 917, 965; Ketsey's Case, Cro. Jac. 320; Hubbard v. Cummings, 1 Me. 11; Bigelow v. Kinney, 3 Vt. 353; Baker v. Kennett, 54 Mo. 82; Roberts v. Wiggin, 1 N.H. 73; Boody v. McKenney, 23 Me. 517; Walsh v. Powers, 43 N.Y. 23; Callis v. Day, 38 Wis. 643; Kemp v. Cook, 18 Md. 130.
The court may acquire jurisdiction over infant defendants of the age of fourteen in the same manner as over adult defendants. Eisenmenger v. Murphy, 42 Minn. 84. But in any case in Minnesota the court may acquire jurisdiction over defendants without service of summons. G.S. 1894, § 5209. It follows that at least such infant defendants may voluntarily appear and submit to the jurisdiction as completely as if summons were served on them. An infant of the age of fourteen is presumed to be a person of legal discretion, and hence the court, in acquiring jurisdiction, treats him as it does adult defendants. Temple v. Norris, 53 Minn. 286.
Under G.S. 1894, § 6152, at least the three elder infant defendants had the right to apply personally for appointment of a guardian ad litem. It is immaterial how or by whom their petition was presented. The presumption is that it was duly presented, and that the court duly acted. If there was any irregularity in obtaining service, it would simply make the judgments voidable, and the infant must disaffirm within a reasonable time after coming of age. Eisenmenger v. Murphy, supra; Hoover v. Kinsey, 55 Iowa 668; Freeman, Judg. §§ 151, 513; Moore v. Starks, 1 Oh. St. 369; Lessee of Nelson v. Moon, 3 McLean, 319; Gronfier v. Puymirol, 19 Cal. 629; Jenkins v. Esterly, supra; Goodnow v. Empire L. Co., supra; Bennett v. Fenton, 41 F. 283. See also Feikert v. Wilson, 38 Minn. 341; Bryan v. Kennett, 113 U.S. 179; Hale v. Hale, 146 Ill. 227; Levystein v. O'Brien, 106 Ala. 352.
S. B. Wilson and Fowler & McNamara, for respondents.
A court may at any time clear its records of unauthorized entries. Heffner v. Gunz, 29 Minn. 108; Feikert v Wilson, 38 Minn. 341. Defendant does not waive a jurisdictional objection, or appear generally, by coupling with a motion to vacate a judgment for want of jurisdiction other grounds of relief not inconsistent with it. Godfrey v. Valentine, 39 Minn. 336. The judgment is void because it is based solely on a purported admission of service outside the state. Service of summons outside the state would, of course, be ineffectual, and admission of such service cannot have any greater effect than such service itself. Weatherbee v. Weatherbee, 20 Wis. 526. A minor cannot accept service, or waive any formula of service. Winston v. McLendon, 43 Miss. 254; Kansas v. Campbell, 62 Mo. 585; Armstrong v. Wyandotte, 1 McCahon, 576; Crouter v. Crouter, 133 N.Y. 55. When the record shows service to have been made in some particular way, there is no presumption that it was made in any other way. Ely v. Tallman, 14 Wis. 28; Morey v. Morey, 27 Minn. 265, 267; Barber v. Morris, 37 Minn. 194, 196; Jewett v. Iowa L. Co., 64 Minn. 531; Brown v. St. Paul & N.P. Ry. Co., 38 Minn. 506. Service of summons must be made on minors precisely as the statute prescribes, or jurisdiction does not rest. Where there is not such service of summons in the first instance, appointment of a guardian ad litem does not cure the defect. Jurisdiction must be acquired over the infant before there is any authority to appoint a guardian ad litem. Without service on the infant in one of the modes required the appointment is nugatory, and a judgment void though answer be interposed by the guardian ad litem and trial had. Helms v. Chadbourne, 45 Wis. 60; Foster v. Hammond, 37 Wis. 185; Insurance Co. v. Bangs, 103 U.S. 435; Johnston v. San Francisco, 63 Cal. 554; McCloskey v. Sweeney, 66 Cal. 53; Ingersoll v. Mangam, 84 N.Y. 622; Crouter v. Crouter, supra; Darrow v. Calkins, 154 N.Y. 503; Allen v. Saylor, 14 Iowa 435; Good v. Norley, 28 Iowa 188; Gibson v. Chouteau, 39 Mo. 536; Robbins v. Robbins, 2 Ind. 74; Ardil v. Ardil, 26 Ind. 287; Roy v. Rowe, 90 Ind. 54; Whitney v. Porter, 23 Ill. 445; Clark v. Thompson, 47 Ill. 25; Hodges v. Wise, 16 Ala. 509; Taylor v. Walker, 1 Heisk. 734; Lenox v. Notrebe, 1 Hemp. 251; Frazier v....
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