Majority
p. 161PARKS a. PARKS. Supreme Court, Seventh District; General Term, March, 1865.
Headnote
Motion to set aside Proceedings.After an answer is served, a defendant is too late to move to set aside the plaintiffs proceedings, on the ground that the action is prosecuted without the appointment of a guardian.[1]
Appeal from an order.
The action was brought by Amelia J. Parks, an infant, against James W. Parks.
p. 162
An order was made at special term setting aside the summons and complaint, on the ground that the plaintiff, though an infant, prosecuted her action without the appointment of a guardian. The order was to the effect that the proceedings be set aside, unless the plaintiff within twenty days should pro
p. 163
cure the appointment of a guardian, and pay ten dollars costs of motion.
From this order the plaintiff now appealed to the general term.
C. Jordan, for the plaintiff, appellant.
H. H. Woodward, for the defendant, respondent.
The case of Fellows and Hawes a. Niver ( 18 Wend., 563 ) is decisive of this case. In that case the court held that, the defendant having pleaded to the merits, he had waived the irregularity, and admitted that the plaintiffs were recti in cu/ria. The statute in relation to the appointment of guardians for infant parties, when that case was decided, was substantially the same as provided by the Code of Procedure.
Order appealed from reversed, with $10 costs.
Footnotes
- * Present, J. C. Smith, Wells, and E. Darwin Smith, JJ.