Fearing v. Clawson — 1 N.Y. Super. Ct. 55

Majority

p. 55

Israel Fearing versus Horatio N. Clawson.

August Term 1828.

Headnote

If an infant defendant who is arrested, does not appear to the action, nor take any notice of the arrest; upon motion of the plaintiff, and on notice to the infant, the court will appoint a nominal guardian, ad litem, for him in order to prevent the proceedings from being afterwards set aside.

Mr. W. Price, in behalf of the plaintiff in this case, made an application for the appointment of a guardian ad litem to the defendant, an infant, who had been arrested, but had not appeared, nor taken any notice [of the arrest. He read an affidavit setting forth, that the action was brought for necessaries furnished to the infant.

The plaintiff, he said, could not safely take a default against the defendant, because, as laches cannot be imputed to an infant, he might, after the default, cause the same to be set aside; on the application of his guardian. From the books of practice, and the decisions of our courts, it appears, that the guardian named need not be a real person to appear and make defence; but a rule may be entered for the appointment of a nominal guardian merely. [2 Sell. Prac. 68. 2 Arch. Prac. 145. 6 Cowen's R. 50. ]

Were it not for the authorities cited, we should incline to the opinion, that in bailable actions, the guardian to be appointed should be some real person to appear and protect the rights of the infant. But it seems from the books, that a mere nominal guardian may be named in cases where the infant neglects to appear. The rule does not seem to be well founded, and this court will hereafter establish some general regulation to establish its practice upon the subject.

In the present instance, let a rule be entered for the appointment of a nominal guardian ad litem, for the infant ¡defendant, upon the plaintiff’s giving him due notice of the rule, that he may have an apportunity to come in and name a guardian for himself.

[ W. S. Sears atty. for plff.]