Trolinger v. Cluff

• Decision Date: 21 April 1936
• Docket Number: 6256
• Citation: 56 Idaho 570,57 P.2d 332
• Parties: HUSTON TROLINGER, Appellant, v. CONNA CLUFF, Respondent
• Court: Idaho Supreme Court

57 P.2d 332

56 Idaho 570

HUSTON TROLINGER, Appellant, v. CONNA CLUFF, Respondent

No. 6256

Supreme Court of Idaho

April 21, 1936

INFANTS-GUARDIAN AD LITEM, FAILURE TO APPOINT-JURISDICTION.

1. Statute providing that infant party must appear either by general guardian or by guardian ad litem is not applicable unless court has acquired jurisdiction of infant (I. C. A secs. 5-306, 5-307, 5-507).

2. Failure to appoint guardian ad litem for infant defendant while irregular, does not of itself defeat jurisdiction of court (I. C. A., secs. 5-306, 5-307).

3. Failure to appoint guardian ad litem for infant defendant does not warrant setting aside, reversing or vacating judgment unless substantial rights of infant were affected by such failure (I. C. A., sec. 5-306).

4. Infant aged twenty years and three months at time of trial who was duly served with process, who appeared in person and by counsel and filed answer and other pleadings and went to trial without setting up infancy, could not upon reaching his majority have judgment vacated for failure to appoint guardian ad litem as required by statute, in absence of showing of fraud, collusion or duress, or that infant had meritorious defense, or that he was not properly and ably represented (I. C. A., secs. 5-306, 5-307, 5-507).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action to vacate judgment. Judgment for defendant, Affirmed.

Judgment affirmed. Costs awarded to respondent.

James R. Bothwell, Harry Povey and Andy Myers, for Appellant.

When an infant is a party he must appear either by his general guardian or by guardian ad litem appointed by the court in which the action is pending in each case or by a judge thereof, or a probate judge. (I. C. A., secs. 5-306, 5-307; State v. Stark, 149 Iowa 749, 129 N.W. 331, Ann. Cas. 1912D, 362; Johnson v. Waterhouse, 152 Mass. 585, 26 N.E. 234, 23 Am. St. 858, 11 L. R. A. 440; Bell v. Bannister, 212 Ala. 31, 101 So. 653; Crawford v. Neal, 56 Cal. 321.)

Judgment against minor not represented by general guardian or guardian ad litem is irregular and voidable. (Trask v. Boise King Placers Co., 26 Idaho 290, 142 P. 1073; Childs v. Lanterman, 103 Cal. 387, 37 P. 382, 42 Am. St. 121; Johnston v. Southern Pacific Co., 150 Cal. 535, 89 P. 348, 11 Ann. Cas. 841; King v. Wilson, 116 Cal.App. 191, 2 P.2d 833.)

Judgment against minor not represented by guardian or guardian ad litem should be set aside and vacated upon minor's disaffirmance. (Gouanillou v. Industrial Acc. Com., 184 Cal. 418, 193 P. 937; De Guzman v. Shepherd, 225 Mich. 606, 196 N.W. 523; Bell v. Bannister, supra; Johnson v. Waterhouse, supra.)

Chapman & Chapman, for Respondent.

A judgment rendered against a minor in the absence of a guardian ad litem, where he has appeared by an attorney, will be upheld as fully as though he had appeared in person, and that the appearance by an attorney will be assumed as authorized by him so far as direction and consent of the infant can give authority, and in any action after attaining his majority, taken with reference to the judgment, he must indicate his repudiation of the appearance of such attorney. (Childs v. Lanterman, supra.)

Failure to appoint guardian ad litem is mere irregularity not affecting the question of jurisdiction. Courts will disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment will be reversed or vacated by reason of such error or defect. (Trask v. Boise King Placers Co., 26 Idaho 290, 142 P. 1073; Baker v. Mardis, 221 Mo.App. 1185, 1 S.W.2d 223, 226; Audsley v. Hale, 303 Mo. 451, 261 S.W. 117 (122); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (513); In re Smith's Estate, 200 Cal. 654, 254 P. 567.)

BUDGE, J. Givens, C. J., and Holden and Ailshie, JJ., concur. Morgan, J., dissents.

OPINION

BUDGE, J.

This action was brought by appellant seeking to cancel, annual and set aside a judgment entered against him, the sole reason urged being that when the judgment was entered appellant was a minor and did not appear by general guardian and no guardian ad litem was appointed in the action in which the judgment was entered.

The findings of the court, which are sustained by the evidence, clearly relate the situation: May 9, 1933, respondent herein instituted an action against appellant to recover damages. Summons was served upon appellant and he then appeared in said action by demurrer, amendment to demurrer, motion to require plaintiff to separately state and number, amendment to motion to require plaintiff to separately state and number, motion to strike, motion to elect, and demand for bill of particulars. On August 2, 1933, appellant filed his answer in said action, appearing by three members of the bar, being the same attorneys who are his counsel in the instant action. The damage action was tried before the court with a jury and was concluded on October 11, 1933, the jury returning a verdict in favor of respondent herein. Appellant appeared in the damage action in person, his father was present at the trial and assisted him in the employment of counsel, appellant, his father, and numerous other witnesses in appellant's behalf were called, sworn and examined, the cause was vigorously contested, instructions were requested by appellant, the cause argued by appellant's counsel, and judgment was duly entered in favor of respondent. Thereafter appellant filed his motion to retax costs, which said motion was denied, the judgment was recorded, there was no motion for new trial nor to vacate said judgment and no appeal to this court. The judgment has not been satisfied and the same now appears as a binding judgment and obligation against appellant. It was further found by the court that in none of the pleadings filed by appellant in said action was the age of appellant mentioned or alleged, that appellant did not in that action at any time make application for the appointment of a guardian ad litem. Likewise respondent made no application for the appointment of a guardian ad litem and none was appointed in said action at any time. The court further found that appellant's counsel were and are members of the bar of this court and that appellant's defense was fully and ably presented both as to questions of law and fact to said court and jury and was fully and ably argued by his counsel to said jury and that said judgment was and is the result of a complete judicial investigation resulting from a trial before a court and jury, extending over a period of six days. The court found that during the progress of the trial appellant testified he was under the age of twenty-one years, and that his twenty-first birthday would occur on July 28, 1934, and that respondent testified upon the trial that appellant had denied his said age to her and had stated to her that he was older.

The trial court entered judgment for respondent, upholding the former judgment and this appeal was taken.

The question presented is: Under the foregoing facts, briefly, after a minor of the age of more than 14 years has been duly served with process, appears in person and by counsel, files an answer and other pleadings, goes to trial, is represented therein, awaits the return of the verdict and judgment without setting up his infancy, can he, after judgment against him, upon reaching majority interpose his minority as a sole ground for setting aside the verdict and judgment?

The statutes indicate a distinction is to be drawn between infants under the age of 14 years and those who have reached the age of 14 years or more, I. C. A., sec. 5-307, providing:

"When a guardian is appointed by the court or judge he must be appointed as follows: . . . .

"When the infant is defendant: upon the application of the infant if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant. . . ." (Italics added.)

Probably the greatest distinction recognized between infants under and over the age of 14 years is with relation to the manner of service of summons in order for the court to acquire jurisdiction, I. C. A., sec. 5-507, providing that in order to acquire jurisdiction of an infant under the age of 14 years service must be had on another person as provided in the statute in addition to the minor, while if the minor be of the age of 14 years or more the court acquires jurisdiction by personal service on such minor only, the state reciting in part: . . . .

"The summons must be served by delivering a copy thereof as follows: . . . .

"4. If against a minor under the age of fourteen years residing within this state, to such minor personally and also to his father, mother, or guardian, or if there be none in this state, then to any person having the control or care of such minor or with whom the minor resides, or in whose service he is employed. . . . In all other cases to the defendant personally." (Italics added.) (Brown v. Lawson, 51 Cal. 615; Bolling v. Campbell, 36 Okla. 671, 128 P. 1091; Bolling v. Gibson, 36 Okla. 678, 128 P. 1093.)

After jurisdiction has been acquired by the court by service upon the minor of the age of 14 years or more the further question presents itself as to the effect of the provisions of I. C. A., sec. 5-306, providing:

"When an infant . . . . is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending in each case, or by a judge thereof, or a probate judge. A guardian ad litem may be...