Winslow v. McCarthy

Judgment — Order Vacating — Presumption on Appeal.—Where an order granting a motion to vacate a judgment is general in its terms, and it can be sustained on any ground stated in the motion therefor, an appellate court is bound to assume that it was granted upon such ground.

Id.—Insane Dependant—Judgment by Inadvertence.—Where the defendant in an action had been adjudged insane and committed to an asylum, but no guardian of his person or guardian ad litem was appointed for him, and thereafter the summons was served on the defendant and the superintendent of the asylum by the sheriff, who in his return incorrectly stated that such superintendent was the guardian of the person of the defendant, and judgment was thereupon obtained by the plaintiff against the defendant, an appellate court may assume that had the trial court known that the defendant had no general guardian, it would have appointed a guardian ad litem in compliance with section 372 of the Code of Civil Procedure, and that the judgment was rendered inadvertently and irregularly by the court, which therefor had the right to set the judgment aside of its own motion.

Id.—Affidavit of Merits Unnecessary.—In such case, where one of the grounds of a motion on behalf of the subsequently appointed guardian of the person and estate of the defendant to vacate the judgment was that no guardian ad litem, had been appointed by the court for the defendant, although said defendant had been adjudged insane, and had no general guardian at the time the judgment was rendered against him, such ground cannot be said to be chargeable to the mistake, inadvertence, surprise, or excusable neglect of the defendant, but rather to the inadvertence of the court, and in such case an affidavit of merits under section 473 of the Code of Civil Procedure is unnecessary.