Trask v. Boise King Placers Co.

• Court: United States State Supreme Court of Idaho
• Citation: 142 P. 1073,26 Idaho 290
• Parties: INA M. TRASK, Respondent, v. THE BOISE KING PLACERS COMPANY, Appellant
• Decision Date: 13 July 1914

142 P. 1073

26 Idaho 290

INA M. TRASK, Respondent, v. THE BOISE KING PLACERS COMPANY, Appellant

Supreme Court of Idaho

July 13, 1914

PLEADINGS-AMENDMENTS TO-INVITED ERROR-FAILURE TO DEMUR AT PROPER TIME-APPOINTMENT OF GUARDIAN AD LITEM AFTER TRIAL-INFORMALITY OF VERDICT-APPORTIONMENT BY COURT OF AMOUNT OF JUDGMENT.

1. Where an action for injuries to a minor child was commenced by the mother on the theory that the mother, as the natural guardian of such child, could recover for such injuries, both on her own behalf and on behalf of the minor, and the allegations of the complaint showed that to be plaintiff's theory of the case, and defendant answered on the same theory of the case, and evidence was introduced without objection sustaining the allegations of the complaint, and at the close of the introduction of evidence and by consent of counsel for defendant the complaint was amended by inserting in the title of the action the additional words, "For herself and on behalf of her minor son, W. E. Trask," and other amendments were allowed at the same time, additional instructions covering the amendments being given by the court to the jury, and such amendments did not involve the introduction of any further evidence or any new state of facts, and it appeared that defendant was in no way misled or prejudiced by the making of such amendments, the allowance thereof did not constitute a new cause of action, and was properly granted by the court under sec. 4229, Rev. Codes.

2. A judgment will not be reversed on account of alleged errors that have been consented to or invited, especially where it appears that appellant has not been prejudiced thereby.

3. Under the provisions of sec. 4178, Rev. Codes, failure on the part of defendant to seasonably raise by demurrer questions involving lack of capacity on the part of the plaintiff to sue, or defect or misjoinder of parties, must be deemed to be a waiver of the right to thereafter raise such questions.

4. The appointment of a guardian ad litem after the trial of a case and on the hearing of a motion for new trial, by an order of the trial court nunc pro tunc, is not a jurisdictional defect, but at most an irregularity which does not of itself vitiate the proceedings.

5. Where the title of the cause as inserted in the verdict of the jury designates the plaintiff as "Mrs. Ina M Trask," whereas in accordance with an amendment to the complaint previously made by consent the words "for herself and on behalf of her minor son W. E Trask" should have been added, but were omitted through inadvertence, such informality will not vitiate or render uncertain the verdict, which is to be read with the aid of the pleadings and in the light of the instructions of the court.

6. Indefiniteness of a verdict is not a ground for granting a new trial under the provisions of sec. 4439, Rev. Codes.

7. Where, in an action to recover for injuries to a minor child the jury rendered a verdict of $8,000 in favor of the mother and minor child, and on motion for new trial the court reduced the judgment to $5,000, and apportioned that sum $1,000 to the mother and $4,000 to the minor child, on condition that the mother and the minor, through his guardian ad litem, should file disclaimers of any greater sums, and such disclaimers were filed with the court, both the mother and the minor are bound by the judgment, and the defendant cannot be heard to complain in the absence of any showing that it is prejudiced by the action of the court in so apportioning the judgment.

8. A minor is bound by a judgment in a case wherein he is a party and represented by a guardian ad litem regularly appointed when such guardian accepts the judgment of the court on behalf of his ward.

9. Held, that it does not appear from the record in this case that any substantial rights of appellant have been materially affected by any error or defect that may have occurred during the trial or proceedings.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action to recover for personal injury to a minor child by the mother on behalf of herself and child. Verdict of $ 8,000 for plaintiffs, which on motion for new trial was reduced by the lower court to $ 5,000 and apportioned between plaintiffs. From this judgment and order overruling motion, defendant appealed. Affirmed.

Judgment affirmed, with costs in favor of the respondents. Petition for rehearing denied.

C. H. Hartson, P. E. Cavaney and A. A. Fraser, for Appellant.

The court erred in permitting, at the close of the trial, the plaintiff to amend her complaint by alleging that she brought the action for herself and on behalf of her minor son, W. E. Trask, for the reason that such an amendment constituted an entirely new cause of action; second that no general guardian or guardian ad litem had been appointed for the minor; third, for the reason that the action was not prosecuted in the name of W. E. Trask. (Sec. 4095, Rev. Codes; McCloskey v. Sweeney, 66 Cal. 53, 4 P. 943; Johnston v. San Francisco Sav. Union, 63 Cal. 554.)

The action must be brought in the name of the minor and not in the name of the guardian on behalf of the minor. (Fox v. Minor, 32 Cal. 111; 91 Am. Dec. 566; Wilson v. Wilson, 36 Cal. 447, 451, 95 Am. Dec. 194.)

If a new cause of action is injected into the suit by an amendment or otherwise, the attorneys in the original action have no authority to-bind their client in the new proceeding by accepting process of any kind. (Ashcraft v. Powers, 22 Wash. 440, 61 P. 161; Erskine v. McIlrath, 60 Minn. 485, 62 N.W. 1130.)

An order can be entered nunc pro tunc to make a record of what was previously done by the court, although not then entered, but where the court has wholly omitted to make an order which it might or ought to have made, it cannot afterward be entitled nunc pro tunc. (25 Cyc. 1516; State ex rel. Gordon Hardware Co. v. Langley, 13 Wash. 636, 43 P. 875; Southern P. Co. v. Pender (Ariz.), 134 P. 289; Clark v. Bank of Hennessey, 14 Okla. 572, 79 P. 217, 2 Ann. Cas. 219; Clark v. Strouse, 11 Nev. 76; Lombard v. Wade, 37 Ore. 426, 61 P. 856; 1 Black on Judgments, sec. 132.)

Such orders are issued to make the record conform to the truth (State v. Bush, 136 Mo.App. 608, 118 S.W. 670; Gormley v. St. Louis Transit Co., 126 Mo.App. 405, 103 S.W. 1147); and supply only the record not the order. (Finch v. Finch, 111 Ill.App. 481; Klein v. Southern P. Co., 140 F. 213.)

When a case is tried by a jury, one verdict settles the whole issue, and unless set aside, furnishes the complete basis of a judgment, which cannot in anything depart from it; and there is and can be no issue which the jury do not dispose of. (Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 13 Am. St. 438, 42 N.W. 827, 5 L. R. A. 226; First Nat. Bank v. Vander Stucken (Tex. Civ. App.), 37 S.W. 170.) "The verdict forms the basis of the judgment and hence the judgment must conform thereto." (Clark v. Clark, 21 Tex. Civ. App. 371, 51 S.W. 337; Letot v. Peacock (Tex. Civ. App.), 94 S.W. 1121.)

A judgment must conform to the verdict not only as to the amount, but as to the parties against whom the finding is made. (Morsch v. Besack, 52 Neb. 502, 72 N.W. 953; Dysart v. Terrell (Tex. Civ. App.), 70 S.W. 986; Galveston H. & S. A. Ry. Co. v. Johnson, 24 Tex. Civ. App. 180, 58 S.W. 622; Smith v. Eagle Mfg. Co., 25 Okla. 404, 108 P. 626.)

Where there are two plaintiffs or two defendants, and the judgment is against only one, and fails to designate which one, the judgment is void for uncertainty. It must state for which one it is given. (Holt v. Gridley, 7 Idaho 416, 63 P. 188; Richards v. Scott, 7 Idaho 726, 65 P. 433.)

A several judgment cannot be entered on a joint verdict. (23 Cyc. 823; Eastman v. Jennings-McRae Logging Co. (Or.), 138 P. 216.)

In actions ex delicto the cause of action alleged in the original pleading must be adhered to and its identity preserved, and hence a change by way of amendment, pleading a different liability on the part of the defendant, is an attempt to introduce a new and distinct cause of action and the amendment will not be allowed. (31 Cyc. 416; Central of Georgia Ry. Co. v. Williams, 105 Ga. 70, 31 S.E. 134.)

Earl C. Miller and E. G. Davis, for Respondents.

The court may, in the furtherance of justice, allow a party to amend any pleading or proceeding by adding or striking out the name of any party. (Sec. 4229, Rev. Codes; Perine v. Grand Lodge A. O. U. W., 48 Minn. 82, 50 N.W. 1022.)

The appellants, being clearly apprised of the complaint, were authorized, under sec. 4174, Rev. Codes, to demur. Their failure to do so must be regarded, under sec. 4178, as a waiver. (Bonham Nat. Bank v. Grimes Pass Placer Min. Co., 18 Idaho 629, 633, 111 P. 1078; Porter v. Title Guaranty & Surety Co., 21 Idaho 312, 121 P. 548; Smith v. Carney, 127 Mass. 179.)

The omission of the name of the minor in an action by his guardian is not a jurisdictional defect and is one which may be remedied by amendment. (Love v. Southern Ry. Co., 108 Tenn. 104, 65 S.W. 475, 55 L. R. A. 471; 31 Cyc. 738; Lombard v. Morse, 155 Mass. 136, 29 N.E. 205, 14 L. R. A. 273; Delisle v. Bourriague, 105 La. 77, 29 So. 731; 54 L. R. A. 420; Deming v. Darling, 148 Mass. 504, 20 N.E. 107, 2 L. R. A. 743; St. Louis A. T. Ry. Co. v. Triplett, 54 Ark. 289, 15 S.W. 831, 11 L. R. A. 773; Chicago etc. R. Co. v. Shaw, 63 Neb. 380, 88 N.W. 508, 56 L. R. A. 341.)

The omission to appoint a guardian ad litem of an infant plaintiff before the bringing of an action is not a jurisdictional defect, but is an irregularity merely. (Rima v. Rossie Iron Works, 120 N.Y. 433, 24 N.E 940; Jones v. Steele, 36 Mo. 324; Chudleigh v. Chicago etc. P. Ry. Co., 51 Ill.App. 491; Evans v....