Cikuth v. Loero

California Court of Appeal May 13, 1936 No. Civ. 10057Published

Before: Nourse

AI Brief

AI-generated · verify before citing

Holding. The trial court lacked jurisdiction to vacate a judgment that was not void on its face because the motion was filed more than six months after the judgment became final and did not rely on authorized statutory grounds.

Issues

Whether the failure to appoint a guardian ad litem for a minor defendant renders a judgment void or merely irregular.
Whether a trial court retains jurisdiction to vacate a final judgment after the expiration of the statutory period for such motions.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is the accepted rule that the failure to appoint a guardian for a minor ad litem is a mere irregularity or judicial error which does not affect the jurisdiction of the court.”

“unless the power to modify or vacate is reserved, that power is lost when the judgment becomes final.”

[33]

NOURSE, P. J.

The plaintiff appeals from an order vacating a judgment. A trial was had commencing March 7, 1934, and resulting in a judgment for plaintiff entered March 22, 1934. On April 26, 1934, after having filed a notice of intention to move for a new trial, the defendant, Alfred Medeiros, filed a disaffirmance of the judgment on the grounds of his minority during the course of the trial and because no guardian

ad litem

or general guardian had been appointed to represent him. After this judgment had become final, and on May 18, 1935, this defendant through a guardian

ad litem,

who had been appointed for the purpose, moved to vacate and set aside the judgment on the same grounds. In its order vacating the judgment the trial court found that the defendant Medeiros had been properly represented by counsel throughout the course of the trial and that his substantial rights were protected at all stages of the proceedings. The undisputed evidence is that this action, which was one for damages for an injury resulting from an automobile collision, was in truth and fact tried and defended by the insurance carrier of defendant Medeiros, and after an adverse judgment was entered, the insurance carrier persuaded him to raise the point of minority and to follow with a motion to vacate the judgment.

The burden of appellant’s attack upon the order rests upon the principle that where the substantial rights of a minor have been fully and adequately protected during the course of a trial, he should not be permitted to disaffirm a judgment regularly entered against him. Respectable authorities are cited in support of this principle and others could be cited in opposition to it. A decision on the point is not necessary because the judgment herein is controlled by considerations which go beyond that of the discretion of the trial judge.

The order must be reversed because the court was without jurisdiction to make it. It is the accepted rule that the failure to appoint a guardian for a minor

ad litem

is a mere irregularity or judicial error which does not affect the jurisdiction of the court.

Cikuth v. Loero

AI Brief

NOURSE, P. J.

More from California Court of Appeal

Related research

AI Brief