McCloskey v. Sweeney (1884) · DecisionDepot

McCloskey v. Sweeney

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Oct 28, 1884 No. No. 8,483Published

Before: McKinstry

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Holding. The court held that a judgment against an infant defendant is invalid when the infant was not served with process, as the court lacks the authority to appoint a guardian ad litem prior to such service.

Issues

Whether a judgment against an infant defendant is valid without service of process.
Whether a court may appoint a guardian ad litem for an infant before the infant has been served with a summons.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“The infant was not authorized to nominate an attorney. Nor does the court have power to appoint a guardian ad litem to appear for the infant until after summons has been served on the infant.”

Synopsis

Practice—Infant—Service of Summons—Guardian ad Litem.—An Infant who is party to an action cannot nominate an attorney, nor can the court appoint a guardian ad litem until the infant has been served with summons.

McKinstry, J. In the action J ames McCloskey, Margaret Sweeney, Mary Sweeney and James Sweeney, the defendant last named—an infant over the age of fourteen years—was not served with process. The infant was not authorized to nominate an attorney. Nor does the court have power to appoint a guardian ad litem to appear for the infant until after summons has been served on the infant. (C. C. P. § 373 ; Johnston v. S. F. S. Union, 63 Cal. 554.)

Judgment and order reversed, and cause remanded for a new trial.

Ross, J., and McKee, J., concurred.

McCloskey v. Sweeney

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