107 N.C. 92 | N.C. | 1890
after stating the facts: Was the judgment in question irregular and void ?
There is a presumption in favor of the validity of every judgment of a Court of competent jurisdiction, and, in this, there is no distinction between judgments against adults and judgments against infants, where the parties are properly within the jurisdiction of the Court (Mauney v. Gidney, 88 N. C., 200), and while it is, for obvious reasons, the duty of the Courts to see that the rights and interests of infants are guarded and protected, and, where they are without regular guardians, to- see that suitable and fit persons are appointed guardians ad litem to protect and defend them in their rights when litigated before the Courts, yet, in the absence of any charge that the Court has been imposed upon by fraud and collusion, it will be presumed that every Court, having jurisdiction of the parties and the subject matter, does what is necessary to give effect to its proceedings; this presumption in favor of the validity of judicial proceedings will not permit the judgments of Courts to be set aside or annulled, in the absence of fraud, for mere informalities, technicalities or omissions that do not affect their merits or defeat the ends of justice. Omnia presumuntur
In this case the defendants insist that the judgment was irregular and void upon several grounds. The first is that there was no personal service on the infants.
Formerly an infant was brought into Court j.ust as any other defendant was. If he had a general guardian, process was served upon the guardian; if there was no general guardian, the Court acquired jurisdiction by service of process upon the infant, and appointed some suitable person— frequently some officer of the Court — as guardian ad litem, who accepted service and defended for him; but since the Code of Civil Procedure (The Code, §217), the service upon a minor under the age of fourteen must be upon him personally, and also his father, mother or guardian, or, if there be none in the State, then upon any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed. In the present case, process was not served upon the defendants personally, as was required, but upon their grandfather, with whom they .lived.
In Marshall v. Fisher, 1 Jones, 111, it is said that a judgment against an infant appearing by attorney, though erro
The defendants rely upon Stancill v. Gay, 92 N. C., 464; Larkins v. Bullard, 88 N. C., 35, and Perry v. Adams, 98 N. C., 167. There is a very clear distinction between those cases and this. In them there was no service of process at all, on anybody, no guardian ad litem appointed to protect their rights, and no answer by any one for them, and the curative act of 1879, neither by its letter nor spirit, was intended to make the proceedings and judgments valid in such cases. In Perry v. Adams, the present Chief Justice said: “The object of the curative statute is to cure the judgment and proceeding, when such personal service was omitted, but it does not embrace cases where no service was made upon the infant, or any other person in his behalf, as the statute requires to be done.” In the case before us, there was service upon the grandfather of the infants, with whom they lived, and an appearance and answer for them.
The defendants say, secondly, that there was no evidence before the Court to support the finding of fact that “ W. L. Reid filed an answer as guardian ad litem for the defendants, or of his appointment as guardian ad litem.” The recitals and facts appearing in the record constitute evidence, in themselves, to support the finding, and this objection cannot be sustained.
The law is careful in protecting the rights of infants, and when they are brought within the jurisdiction of the Courts, by proper or sufficient process, a guardian ad litem should be appointed for them who shall, “if the cause in which he is appointed be a civil action, file his answer to the complaint within the time required for other defendants,” and
In Williamson v. Hartman, 92 N. C., 239, it is said: “Generally, a judgment will be set aside only when the irregularity has not been waived or cured, and has been, or may be, such as has worked, or may yet work, serious injury or prejudice to the party complaining interested in it. While, as has been said, the Courts will always be careful of the rights of infants, they will not set aside irregular judgments against them as a matter of course, and before doing so, it ought to appear from the record, or otherwise,-that the infant has suffered some substantial wrong or injury. Of course, it may be impeached for fraud, and will also be set aside if void.”
It is insisted, thirdly, that no issues were submitted to the jury, and that there was no waiver of trial by jury, as required by The Code, and the Judge had no right to find the facts in the manner set out, and that the judgment rendered was void for this fatal irregularity. The defendants were properly in Court by their guardian ad litem and by attorney, and it was competent for them to waive a jury trial, which should have been properly and regularly done in the mode prescribed by statute; but, if the Judge proceeded to find the facts, and there was no objection, neither before nor after the rendition of the judgment, during the term, and without appeal, it must be taken to have been rendered by consent and a waiver, and they will be estopped. Leach v. Railroad, 65 N. C., 486; Crump v. Thomas, 85 N. C., 272; Stevenson v. Felton, 99 N. C., 58; Spencer v. Credle, 102 N. C., 68; Railroad v. Parker, 105 N. C., 246.
The Court having jurisdiction of the parties, if there was no consent, the proper remedy was by appeal, as in the cases of Andrews v. Pritchett, 66 N. C., 387, and Chasteen v. Martin, 81 N. C., 51.
It appears from the recital in the judgment that the guardian ad litem adopted the answer that had been filed for the defendants. This answer, sent up as part of the case, is not a mere formal answer, but a denial, in detail, of the allegations of the complaint, and sets forth, affirmatively, matters of defence, manifesting an intelligent interest in behalf of the infant defendants. It does not appear how the defendants suffered any wrong or injury, or that any injustice was done them; and, in the absence of fraud, of which there is no allegation or intimation, the judgment must be presumed to have been fairly and regularly taken. Wiseman v. Penland, 79 N. C., 197.
No error.