Smith v. Lamb, s. 38716

• Decision Date: 15 February 1961
• Docket Number: Nos. 38716,38717,No. 2,s. 38716,2
• Citation: 103 Ga.App. 157,118 S.E.2d 924
• Parties: Steve SMITH v. Harry LAMB. Steve SMITH v. Ruth LAMB
• Court: Georgia Court of Appeals

Page 924

118 S.E.2d 924

103 Ga.App. 157

Steve SMITH v. Harry LAMB.

Steve SMITH v. Ruth LAMB.

Nos. 38716, 38717.

Court of Appeals of Georgia, Division No. 2.

Feb. 15, 1961.

Syllabus by the Court.

Where an infant is a party defendant in a civil action it is ordinarily necessary to the validity of the judgment that the court appoint a guardian ad litem to protect his interests. An estoppel in pais to urge the defense, however, may arise where, as here, the fact of infancy is unknown to the court or the opposing parties, no facts are shown which would reasonably cause them to question the defendant's age, and the defendant, with knowledge of his rights and of the ignorance of the court and the parties to the case, appears, pleads, and actively participates in the trial as the leading witness for the defense, being at all times represented by counsel. Silence will constitute deception where there is a duty to speak. Such a duty arises where the machinery of the law would otherwise be subverted to a purpose not intended, that of giving one side two chances for a verdict in his favor where the other side has only one.

Ruth Lamb and Harry Lamb, her husband, brought tort actions against Steve Smith in the Superior Court of Jefferson County under the Nonresident Motorist Act, Code § 68-801 et seq., alleging that the defendant had injured Mrs. Lamb in an automobile collision occurring in Wrens, Georgia. The defendant was served through service upon the Secretary of State as provided by the act. He appeared and defended the actions, which were tried together, both by filing demurrers and answers and appearing as a witness under both direct and cross-examination. The trial resulted in verdicts for the plaintiffs on May 10, 1960. On June 8, 1960, the defendant filed motions to set aside the verdicts and judgments, and also filed amendments to his motions for a new trial, contending therein that he was a minor 19 years of age, that he had not been represented during the trial by a guardian adlitem as required by law, and that accordingly the judgments should be set aside, a guardian ad litem appointed by the court, and a new trial granted. On August 19, 1960, the court named Martha Lou Smith, wife of the defendant, as his guardian ad litem. The defendant testified by affidavit that he was born on June 1, 1940, thus making him a few days under 20 years of age at the time of the trial. This affidavit was supported by that of his wife, which also recited that she had accepted appointment as guardian ad litem and was herself over 21 years of age. Thereafter the court denied the defendant's motions for a new trial and to set aside the judgment, and these judgments are assigned as error.

Thomas F. Allgood, Augusta, Olin B. Cannon, Jr., Louisville, for plaintiffs in error.

Carlton G. Matthews, Jr., Wrens, for defendant in error.

TOWNSEND, Presiding Judge.

Code § 81-212 provides that a minor between the ages of 14 and 21 years of age must be personally served, after which the court shall appoint a guardian ad litem, and the minor shall then be considered a party to the proceedings. Unlike most defenses, infancy, so far as service of process is concerned, is not a defense personal to the defendant, but is a statutory method of making parties, in the absence of which the minor defendant is not bound by the judgment. Maryland Casualty Co. v. Lanham, 124 Ga. 859(1), 53 S.E. 395. A proper method of raising this issue is for the minor defendant to file a plea in abatement. Miller v. Luckey, 132 Ga. 581(1), 64 S.E. 658. However, appearance and pleading to the action by the infant through counsel, and even the fact that he was personally present and testified on the trial of the case, is not of itself sufficient to validate the judgment rendered where there was no service of process according to the statute, unless the infant is subject to an estoppel in pais based on fraud and deceit when he has reached such years of discretion that fraud may be imputed to him. Brown v. Anderson, 186 Ga. 220, 197 S.E. 761. 'Estoppels do not apply to or affect infants, except in cases where an infant's fraudulent act or representation is made with a view to deceive or defraud.' Jones v. Cooner, 137 Ga. 681, 683, 74 S.E. 51, 52. But fraud may arise from silence where there is a duty to speak. 'Even minors may be estopped by their admissions from denying the truth of them, or by their silence, when the circumstances call for a disclosure of their claims or their rithts provided the minor has arrived at those years of discretion when a fraudulent intent could be reasonably imputed to him.' Wolff & Happ v. Hawes, 105 Ga. 153, 158, 31 S.E. 425. In every case we have examined involving the rights of an infant defendant based upon the fact that no guardian ad litem was appointed for him by the court, and where the infant responded by any sort of appearance, whether by filing an answer or participating personally in the trial,...