139 Cal. App. 395 | Cal. Ct. App. | 1934
In an aetion to recover damages for personal injuries caused by negligence of the defendants, judgment was entered against the defendants.
The judgment was entered on January 8, 1934. On January 11th appellant Cirino duly and regularly filed in said
The said motion having been duly presented and heard by the court in accordance with the notice and without any counter-affidavits on the part of the plaintiff, the motion was denied. The present appeal is from the order denying said motion. Appellant having filed her brief on appeal, the plaintiff now moves that the appeal be dismissed, or the order affirmed, on the ground that the appeal is without merit and that the questions on which the decision of the cause depends are so unsubstantial that they need no further argument.
From the bill of exceptions it further appears that the action was brought to trial on December 21, 1933, and was submitted for decision on December 22d, and so remained until findings of fact and conclusions of law were filed on January 5, 1934, followed by entry of judgment on January 8th; that the appellant was not represented by any guardian or guardian ad litem; that after December 25, 1933, and before the decision of the court or entry of judgment the attorneys of record for appellant communicated additional points and authorities on behalf of appellant to the court,
It is provided by section 372 of the Code of Civil Procedure that when an infant is a party he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending. Appellant relies upon various decisions which establish the rule that a judgment against an infant in an action in which no guardian or guardian ad litem has ever been appointed may be disaffirmed by the infant after reaching majority provided he acts promptly and without laches, but that the judgment is not void. (Johnston v. Southern Pac. Co., 150 Cal. 535, 539 [89 Pac. 348, 11 Ann. Cas. 841].) The subject is reviewed at some length in King v. Wilson, 116 Cal. App. 192 [2 Pac. (2d) 833]. There the defendant, Ralph Wilson, was a minor at the time of the trial, and (we assume) down to the date of entry of judgment there was no guardian and no guardian ad litem appointed for him. Tim court held that under the circumstances shown by the record appellant suffered no loss of substantial rights, and the judgment was affirmed. The facts in that ease were very similar to those presented in the case at bar, although we have here the additional facts that the decision was not filed and the judgment was not entered until after appellant attained her majority; and that after appellant became of age and prior to the decision of the cause, attorneys properly representing her acted in her behalf by presenting to the court additional points and authorities upon the matters submitted, which matters did not include any item relating to the minority of appellant.
From the foregoing it plainly appears that the ground of appeal relied upon by appellant is without merit, and that the question presented required no further argument.
The order is affirmed.