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FORM No. 481.

Allowance indorsed.83 The within writ of prohibition is hereby allowed this day of , 19 , (if by the court, add: at an Appellate Dirision of the Supreme Court for the Department.]

[Signature of presiding judge by name and title.]

83 See p. 19 of this volume.

CHAPTER VI.

GUARDIAN AD LITEM FOR A DEFENDANT.

1. Jurisdiction.
2. Prior right of the infant.
3. The practice on plaintitt's part.
4. — on the infant's part.
5. Recital in order and judgment.
6. Proceedings without appointment.
7. Coming of age pending the pro.

ceedings, 8. Amending.

plaintiff, for appointment of a guardian ad litem for

an infant defendant. (489) Another form:- for appoint

ment of guardian ad litem for infant defendant resi:

dent and absent. (490) Order appointing guardian ad

litem for defendant, unless the defendant applies with

in a limited time. (491) Affidavit of service of order

appointing guardian da

litem nisi ; and of default. (492) Order absolute.

III. PROCEEDING SUBSEQUENT TO AP

POINTMENT.

I. APPLICATION BY OR ON BEHALF OP

THE INFANT OR PERSON OF UN.

SOUND MIND. FORMS. (482) Petition by infant defendant,

or by general guardian,

relative, or friend. (483) Consent of proposed guardian

ad litem. (484) Alfidavit of proposed guard

ian ad litem to his compe

tency. (485) Notice to the guardian where

the application is by rela

tive or friend. (486) Order appointing guardian

ad litem for infant defend

ant.
(487) Petition of relative of de-

fendant of unsound mind
for appointment of guard-
ian ad litem.

(493) Bond of guardian ad litem

for infant party, on receiv.

ing fund. 494) Affidavit to obtain contirma.

tion of service on infant, and appointment of guard

ian ad litem, nunc pro tunc. (495) Order confirming service on

infant, and appointment of guardian ad litem, nunc pro

tunc. (496) Order that irregular judg

ment against infant stand

confirmed. (497) Resignation of guardian ad

litem,

II. APPLICATION BY PLAINTIFF FOR

APPOINTMENT OF A GUARDIAN

AD LITEM FOR A DEFENDANT. (488) Petition by or on behalf of

1. Jurisdiction.] – Jurisdiction of the person of an infant or lunatic defendant depends on service of process, not on appointinent of guardian. When it appears that a person served is an infant or is insane, having no judicially appointed committee, the court have power, if there be no statute regulating the subject, to appoint a guardian ad litem. But even where, as in New York, the statute forbids an infant to appear, or judgment to be taken against him by default, without appointment of guardian ad litem, judgment taken without such appointment is not void

for want of jurisdiction if the infant was duly served, but voidable. 84

On the other hand, if the infant is not duly served, so as to acquire jurisdiction, appointment of a guardian does not cure the defect, unless there be some statute or rule of court sanctioning such procedure.83

2. Prior right of the infant.] — It is the duty of the court to look to the interests of infant defendants, and it is not proper to appoint a guardian ad litem for a defendant, on the application of the plaintiff, without inquiry into the infant's situation and interests,86 and without giving the guardian or nearest relative disinterested an opportunity to be heard. 87

By the New York statute,88 an infant over fourteen has twenty days after service in which to apply on his own behalf before the plaintiff can have a guardian ad litem appointed for him.Sa If the infant is under that age, plaintiff can apply at the outset; but the practice is to give opportunity for the friends of the infant to apply, unless circumstances indicate that delay for that purpose would be useless.

The statute requires that the application by the infant be made only after service.90

3. The practice on plaintiff's part.] — The proper course, therefore, is to serve the infant first (save only in exceptional cases, where, as in New York, in the case of a resident infant temporarily absent from the State,91 the court is specially authorized to dispense with such service); then to wait the twenty days, unless the infant is under fourteen, and prompt application on its behalf is unlikely. But plaintiff cannot nominate a guardian for defendant; and the guardian shall have no adverse interest, and shall not be connected in business with the attorney or counsel for the adverse party. 92

84 McMurray 1. McMurray, 66 N. Y. 175; Crouter v. Crouter, 133 id. 55: Smith v. Blood, 106 App. Div. 317, 94 N. Y. Supp. 667; Sims v. N. Y. College of Dentistry, 35 Ilun, 344; Millard v. Marmon, 116 III. 649, 7 N. E. Rep. 468; Coliť. Colt, 111 U. S. 566.

85 Ingersoll 1. Mangam, 84 N. Y. 622 (purchaser not bound because infant. for whom guardian ad litem was appointed, and appeared and answered. was not first served); Smith 1. Reid, 134 N. Y. 568 (and recital of service in the judgment may be shown false); Van Williams r. Elias, 106 App. Div. 288, 94 N. Y. Supp. 611 (infant brought in by order, but no supplemental summons served).

S. P., N. Y. Life Ins. Co. 1. Bangs, 103 U. S. 435.

80 ('. S. Bank 1. Ritchie, 8 Pet. 128; Knickerbacker u. De Freese, 2 Paige, 304.

87 Grant . Van Schoonhoven, 9 Paige, 255. 88 N. Y. Code Civ. Pro., $$ 471, 472.

89 If plaintiff applies before the expiration of the twenty days, the appointment is premature and void, and judgment entered against the infant will be vacated on motion. Keyes 1. Ellensohn, 72 Hun, 392, 25 N. Y. Supp. 693.

When the infant is served by publication of the summons, the appointment may be made upon plaintiff's application after the expiration of the twenty days after service is complete. Platt 1. Finck, 60 App. Div. 312, 70 X 1. Supp. 74.

90 An appointment of a guardian ad litem on petition of infant defendants, pending the publication of the summons against them, is a void appointment. (router l'. Crouter, 133 N. Y. 55; Darrow 1. Calkins, 154 N. Y. 503.

4. — on the infant's part.] — The application, when made by or on behalf of the infant, may be made without notice to the plaintiff, but immediate notice of the appointment when made should be given.

5. Recital in order and judgment.] — It is important to see, not only that a regular appointment is made, but also that its regularity is shown by the recitals in the order,93 and such appointment is recited in the judgment itself.94

6. Proceedings without appointment.] — Proceedings against an infant for whom no guardian ad litem has been appointed, are not merely irregular,95 but the judgment so obtained, though not void for want of jurisdiction, is erroneous " in fact,and may be relieved against on motion.

But answering without objection, and coming of age before judgment, is a waiver of the defect.

7. Coming of age pending the proceedings.] — Upon the infant coming of age, if he is under no other disability, he has a right to appear in person or by an attorney of his own choice, subject, however, to the right of the guardian ad litem and his attorney to protection in respect to costs and expenses already accrued. 56

91 N. Y. Code Civ. Pro., & 473.

92 Court Rule No. 49. A violation of this rule does not render the appointment void, or even voidable, except upon direct attack by appeal or motion to set aside. Parish 1. Parish, 175 N. Y. 183. The court should vacate the appointment, however, upon it appearing that the rule has been violated. Matter of Cutting, 38 App. Div. 247, 56 N. Y. Supp. 945.

93 Parish v. Parish, 175 N. Y. 183.

94 Colt v. Colt, 111 U. S. 566 (holds that with such a recital the objection cannot be raised collaterally). But it may be shown that the infant defendant was not served with process, so that the appointment was absolutely void, notwithstanding a recital of service in the judgment. Smith' v. Reid, 134 N. Y. 569.

95 Peck r. Coler, 20 Hun, 534 (holding that a motion by a judgment-debtor to set aside the judgment on the ground that he was, at the time of its entry, an infant, and that no guardian ad litem had been appointed for him, is not

8. Amending.] — The general power of the court to amendor its proceedings enables it, in furtherance of justice, to allow a defective consent or bondto be amended, and to confirm, nunc pro tunc, an irregular or defective appointment. 99

FORMS.

1. APPLICATION BY OR ON BEHALF OF THE INFANT OR PERSON OF

UNSOUND MIND.

FORM No. 482. Petition by infant defendant,1 or by general guardian, relative, or friend. [Title of the court and cause.] To the Court? [or, to Hon. J. K., one of the judges of the

Court,- or, county judge of county). The petition of Y. Z., above-named (or if by guardian, relative, or friend, the petition of M. N., of ], respectfully shows:

I. That your petitioner (or, said Y. Z.] is an infant, of the age of years on the day of

last, and resides with [his father) at , and that is his general based upon a mere irregularity, but upon an error in fact which need not be specified in the notice of motion). . 96 An action begun by a guardian ad litem which is continued after the infant becomes of age, should by a suggestion entered on the record be continued in the name of the real party in interest; permission to do so may be granted upon decision of an appeal. Breese v. Met. Life Ins. Co., 37 App. Div. 152, 55 N. Y. Supp. 775.

97 Tobin r. Cary, 34 Hun, 431.

98 Croghan 1. Livingston, 17 N. Y. 218;5. c., 6 Abb. Pr. 350, aff'g 25 Barb. 336. As to the mode of amending, see UNDERTAKINGS, pages 473, 474, of this volume.

99 Baumeister r. Demuth, 84 App. Div. 396, 82 N. Y. Supp. 831; aff'd, 178 N. Y. 630 (error in petition by parent in stating infant's age as “of” fourteen when it should have been “under ” fourteen, corrected by order amending petition nunc pro tunc, though the court say that it would have been more regular to have filed a new petition nunc pro tunc).

Schell v. Cohen, 55 Hun, 207, 7 N. Y. Supp. 858 (failure to acknowledge consent).

1 If the infant is under fourteen, the petition must be by guardian, relative, or friend. Where there are several of different ages, the guardian, relative, or friend can join in a petition for all under fourteen.

2 In partition apply to the court. N. Y. Code Civ. Pro., § 1535. In other actions either to court, or judge thereof, or county judge.

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