Keyes v. Ellensohn — 25 N.Y.S. 693

Majority

p. 693

(72 Hun, 392.)

KEYES et al v. ELLENSOHN et al.

(Supreme Court, General Term, First Department.

October 13, 1893.)

Headnote

1. Action against Infant—Appointment of Guaiidian ad Litem.

Code Civil Proc. § 471, provides that an infant defendant must appear by guardian appointed on the infant’s application if he is 14 years old or upward, and applies within 20 days after service of summons, or, if he neglects so to apply, on the application of any other party to the action. Held, that the appointment of a guardian for such infant on plaintiffs' application, before the expiration of 20 days after service of summons, was premature and void.

3. Same—Setting Aside Judgment.

Where the guardian so appointed appeared for the infant, but made no defense, and judgment was rendered against the infant, the court properly exercised its discretion in setting aside such judgment.

Appeal from special term, New York county.

Action by John S. Keyes and another against Barbara Ellensohn and Anna Kristof, by Samuel D. Sewards, her guardian ad litem. There was judgment for plaintiffs, and from an order setting aside, as to defendant Anna Kristof, the judgment against her, plaintiffs appeal.

Affirmed.

Argued before FOLLETT and PARKER, JJ.

Eugene H. Hatch, for appellants.

Isaac L. Miller, for respondents.

The infant defendant was upward of 14 years of age when her guardian ad litem was appointed upon the petition of the plaintiffs’ attorney. An appointment of a guardian ad litem for an infant of the age of 14 years or upward cannot be made upon such a petition until after the expiration of 20 days from the time when the service of the summons is complete. Code Civil Proc. § 471.^[1] It is conceded that this appointment was made within the 20 days, and consequently it was premature and void. The guardian so appointed appeared in the action and answered, but made no defense on the trial, and May 5, 1892, judgment was entered against the infant. On July 24, 1892, a guardian ad litem was appointed on the petition of the infant, who moved to vacate the judgment as against his ward, which was granted. The appellants urge that a judgment against an infant- defendant for whom a guardian has not been appointed is voidable, but not void. Assume this to be so,—which we do not decide,—the special term

1 Code Civil Proc. § 471, provides that an infant defendant must appear by guardian appointed on the infant’s application if he is 14 years old or upward, and applies within 20 days after personal service of summons, or after service thereof by publication is complete, or, if he neglects so to apply, upon the application of any other party to the action, who must give notice thereof to his guardian, or, if he have none, to the infant himself.

p. 694

had the right to set aside a voidable judgment as against this infant, and wre think its discretion was wisely exercised. The order appealed from should be affirmed, with $10 costs and disbursements.