Childs v. Lanterman

103 Cal. 387 | Cal. | 1894

.Harrison,

The plaintiff brought this action to quiet her title to certain lands in the county of Los Angeles, making Roy S. Lanterman, the appellant herein, one of the defendants. An answer to the complaint was filed by Stephen M. White, as attorney for all the defendants, including the appellant, and upon a trial of the cause, judgment was rendered in favor of the plaintiff. When the action was commenced, and at the time of the trial, the appellant was an infant, and did not attain his majority until July 20, 1890. No order of court was made appointing a guardian ad litem for him, and the record does not contain any evidence that the summons iii the action was served upon him, although it is not alleged or shown that service was not in fact made upon him. The findings of the court were filed July 12, 1890, but the judgment, although signed as of that date, was not filed or entered until July 21st. Thereafter, a motion for a new trial was made in behalf of the defendants—Roy S. Lanterman, the appellant herein, making and filing an affidavit in support thereof—and this motion being denied, the defendants appealed from the order and also from the judgment. Upon this appeal the order and judgment were affirmed. (Childs v. Lanterman, 95 Cal. 369.) After the remittitur had been filed in the court below, viz: March 9, 1893, a motion was made on behalf of Roy S. Lanterman to set aside the findings and judgment against him, and to strike out the answer filed on his behalf, upon the ground of his infancy at the time the answer was filed and trial had, and the want of any authority in the attorney to appear in his behalf. This motion was denied, and the present appeal is from that order.

Although it is provided in 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, yet a judgment rendered against an infant, in which no guardian ad litem has been appointed, is not for that reason void (1 Black on Judgments, sec. 195; Emeric v. Alvarado, 64 Cal. 600; Kemp v. Cook, 18 Md. 130; 79 Am. Dec. 681); and a judgment rendered against him in an action in which he has appeared by an attorney will be upheld as fully as though he had appeared in person. (Barber v. Graves, 18 Vt. 290; Marshall v. Fisher, 11 Pa. St. 111; Townsend v. Cox, 45 Mo. 401.) The appearance by an attorney in his behalf will be assumed as authorized by him, so far as the direction and consent of the infant can give authority (Kemp v. Cook, 18 Md. 130; 79 Am. Dec. 681); and if, after reaching majority, he would repudiate such appearance, it is incumbent upon him, when he takes any action with reference to the judgment, to indicate his repudiation, rather than do some act which assumes that the authority was given. If he then treats the judgment as having been regularly entered, and makes no objection upon the ground of irregularity or want of jurisdiction, he waives his right thereafter to make such objection. As the judgment is not void, but is merely voidable at his instance, it may be affirmed by him, and, as in the case of any other obligation that he has assumed during infancy which is susceptible of ratification, it will be considered as affirmed by him if he takes any action in reference thereto, after he comes of age, which is consistent only with assuming its validity.

At the time the judgment herein was entered, the appellant had reached his majority. He could then have sought relief therefrom upon the ground of irregularity in the service of process upon him, or want of authority in the attorney to appear for him, by reason of his infancy; instead of which, however, he moved the court for a new trial, and failing therein, appealed to this court, not only from this order but also from the judgment, and it was not until after the affirmance of that judgment, nearly three years subsequent to its entry, that his infancy at the time it was rendered was brought to the attention of the court. Nor did he, upon the hearing of the present motion, make any personal showing or affidavit in his own behalf, the motion having been presented through an attorney without any affidavit by himself in support thereof, indicative of his desire to avoid the judgment. It is also to be observed that the appellant does not deny that the appearance of the attorney in his behalf was with his full knowledge and concurrence. We are of the opinion that by these acts the appellant submitted himself to the jurisdiction of the court, and is bound by its judgment. It is well settled that if a defendant, though not served with process, takes such a step in an action, or seeks such relief at the hands of the court as is consistent only with the hypothesis that the court has jurisdiction of the cause and of his person, he thereby submits himself to the jurisdiction of the court, and is bound by its action as fully as if he had been regularly served with process. (Coad v. Coad, 41 Wis. 26; Wood v. Young, 38 Iowa, 102; Crowell v. Galloway, 3 Neb. 215; Foote v. Richmond, 42 Cal. 443.) “A party cannot come into court, challenge its proceedings on account of irregularities, and after being overruled be heard to say that he never was a party in court or bound by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceedings on that single ground. This is familiar doctrine.” (Burdette v. Corgan, 26 Kan. 104.)

" The motion of the appellant herein for a new trial, and his appeal from the judgment upon the ground that the court erred in rendering such judgment, assumed that the court had jurisdiction of him, and was a waiver of his right to question that fact. (Fee v. Big Sand Iron Co., 13 Ohio St. 563; Mason v. Alexander, 44 Ohio St. 329.)

The order is affirmed.

Garoutte, J., and Van Fleet, J., concurred!