Yount v. Turnpaugh & Wife

| Ind. | Jul 1, 1870

Elliott, J.

The only error assigned in the case, upon which the appellant relies for a reversal of the judgment, is, that the court erred in overruling the appellant’s motion in arrest of judgment. It is argued in support of the motion, that if Turnpaugh, the husband, was insane and confined in the lunatic asylum at the time of the trial, as alleged in the answer, he could legally appear and plead to the action only by a committee or guardian properly appointed; that his wife, though herself a party to the suit, conld not legally appear and answer for her insane husband; and that the answer filed by her in his behalf and prayer for a rescission of the contract, and also the finding of the jury, and decree of the court thereon, are not binding on him, and therefore erroneous.

The statute confers on the courts having probate jurisdiction, power to appoint guardians for persons Of unsound mind, to whom is committed the control and management of the estates of their wards until their restoration to reason. And the same duties are required of, and the same powers granted to, such guardians, so far as the same are applicable, as are required of and gi’anted to guardians of minors. 2 G. & H. 573-4-5.

An insane person can only properly appear as defendant in a suit by guardian or committee. And it was an evident error in the court, in the case under consideration, to permit the wife to appear and defend for her husband. But the question arises,’ does the appellant, upon the facts in the record, occupy such a position as enables him to avail himself of the error?

It is admitted that, at the time of the trial, Turnpaugh was insane and confined in the lunatic asylum, and yet the' appellant made no effort to have a committee or guardiam appointed to appear for him; and when his wife appeared, and filed an answer in his behalf, her right to do so was-not controverted. True, the appellant demurred to the second paragraph of the answer, but as both paragraphs-were filed in behalf of the husband, and no objection was-urged to the first, it is but reasonable to presume that the objection made to the second related to the sufficiency of the facts alleged to constitute a defense, and not to the right of the wife to answer for her husband. When the demurrer was overruled, no exception was taken to the- ruling, but.. issue was taken on the answer, and the appellant voluntarily went to trial upon the truth of the matters alleged.

G. H. Voss and E. A. Davis, for appellant.

The facts alleged in the answer were sufficient to bar the action, and justify the judgment of the court. The only ■objection to the answer is that it should have been filed by .a committee or guardian of the insane defendant, which, under the facts just stated, we think comes too late.

The court, in the exercise of its chancery powers, might 'have appointed a guardian ad litem to appear for the insane defendant. It however permitted his wife to appear and .answer for him, without objection by the appellant, and he •cannot be permitted to raise the objection after he is beaten •in,a.trial on the merits.

The judgment, in terms, is for both defendants, and is objected to on the ground that as to the sum recovered, except costs, it should have been for the husband alone. This was doubtless an oversight, or a mere clerical error, but no •objection was made to it in the court below, and it cannot avail the appellant to raise it, for the first time, in this court.

The judgment is affirmed, with costs, and ten per cent, damages.