Keyes v. Ellensohn , 72 Hun 392 ( 1893 )

PER CURIAM.

The infant defendant was upward of 14 years of age when her guardian ad litem was appointed upon the petition of the plaintiffs’ attorney. An appointment of a guardian ad litem for an infant of the age of 14 years or upward cannot be made upon such a petition until after the expiration of 20 days from the time when the service of the summons is complete. Code Civil Proc. § 471.¹ It is conceded that this appointment was made within the 20 days, and consequently it was premature and void. The guardian so appointed appeared in the action and answered, but made no defense on the trial, and May 5, 1892, judgment was entered against the infant. On July 24, 1892, a guardian ad litem was appointed on the petition of the infant, who moved to vacate the judgment as against his ward, which was granted. The appellants urge that a judgment against an infant- defendant for whom a guardian has not been appointed is voidable, but not void. Assume this to be so,—which we do not decide,—the special term had the right to set aside a voidable judgment as against this infant, and wre think its discretion was wisely exercised. The order appealed from should be affirmed, with $10 costs and disbursements.

1 Code Civil Proc. § 471, provides that an infant defendant must appear by guardian appointed on the infant’s application if he is 14 years old or upward, and applies within 20 days after personal service of summons, or after service thereof by publication is complete, or, if he neglects so to apply, upon the application of any other party to the action, who must give notice thereof to his guardian, or, if he have none, to the infant himself.