Field v. Hughes

The respondent has moved to dismiss the appeal in this, ease under the provisions of Rule V, subdivision 3, of the Rules for the Supreme Court and District Courts of Appeal, on the ground that the appeal is frivolous and was taken for the sole purpose of delay.

Wayne Smythe, the appellant, was a minor, twenty years of age. He owned an automobile which was insured by the Farmers Automobile Interinsurance Exchange, a corporation. On November 3, 1930, this machine was loaned to the co-defendant, Eugene P. Hughes. While Hughes was operating the car in Sacramento a collision occurred between this automobile and a machine which was being driven by the respondent, Ralph H. Field. Smythe was not then present. Field sustained personal injuries. Suit for damages was instituted against both Hughes and Smythe. No guardian was appointed to represent the minor in that suit. The attorneys for the insurance company appeared and an

Subsequent to the entry of judgment in this case J. L. Hopkins was appointed guardian ad litem of the said minor Wayne Smythe, on March 29, 1932. On the last-mentioned date, the guardian gave notice to the judgment creditor of the disaffirmance of the judgment by the minor. Upon notice and proceedings duly had, the minor, through his guardian ad litem, moved that court to dismiss the judgment as to the minor on the ground of his disaffirmance thereof. This motion was supported by affidavits of respective parties. The motion was denied. From the order of court denying the motion to dismiss the judgment as to the minor, an appeal was perfected. That appeal is pending and undetermined in this court.

The appeal in this case does not appear to be frivolous. It presents the real issue as to whether a minor may disaffirm a judgment which has been rendered against him. It is contended by the respondent on this motion to dismiss the appeal that the minor waived his right to dis-affirm the judgment. The question of this asserted waiver is one of fact which must be determined by the record.

In an action for damages against a minor, he must appear by general guardian or by guardian ad litem as provided by section 372 of the Code of Civil Procedure. A judgment which is rendered against a minor, without the appearance by guardian, is not void, but merely voidable. (Childs v. Lanterman, 103 Cal. 387 [ 37 Pac. 382 , 42 Am. St. Rep. 121 ].) The contract of a minor, except for necessaries furnished to him or his family, or for an obligation incurred by direct authority of statute, may be dis-affirmed by him. (Sec. 35, Civ. Code.) A judgment procured against a minor without the appointment of a guardian as

The respondent contends that the minor’s right to disaffirm the judgment was waived by permitting the judgment to be rendered against him without having notified the trial court of his minority. In support of this assertion, the case of King v. Wilson, 116 Cal. App. 191 [ 2 Pac. (2d) 833 ] is cited as authority. That case is not authority for the assertion that the right to disaffirm may he thus waived. In the King case, supra, a minor did recover judgment for injuries sustained in an automobile casualty without appearing by guardian. On appeal from that judgment, for the first time, it was claimed the judgment was void on account of the minority of the judgment creditor. The minor did not claim her right to disaffirm the judgment. Upon the contrary she was strenuously asserting her right to sustain the judgment. All that the court decided in that case respecting the claim of appellant is that the failure of a minor to appear in a suit without a guardian is not jurisdictional, and the judgment is therefore not void, but merely voidable. This principle is not questioned in the present case. But the appellant in this case does claim that the minor duly disaffirmed the judgment and that he was therefore entitled to have the judgment dismissed as to him. This the trial court refused to do. From the order denying the motion to dismiss the judgment against the minor, this appeal was taken. The appeal, therefore, appears to present a valid issue.

The respondent also relies upon the case of People v. Luzovich, 127 Cal. App. 465 [ 16 Pac. (2d) 144 ], to support

The question of jurisdiction of the court was the only problem there involved. There was no question of a right to disaffirm a judgment. The right of a minor to disaffirm a judgment under certain circumstances is granted by the provisions of section 35 of the Civil Code. Numerous authorities support this right of a minor to disaffirm a judgment.

The motion to dismiss the appeal is denied.

Pullen, P. J., and Plummer, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on May 9, 1933.