Redmond v. Peterson
Synopsis
Parties—Guardian of Incompetent Person.—The guardian of an incompetent person is neither a necessary nor a proper party to an action upon a note and mortgage assigned by the incompetent person to the plaintiff.
Id.—Service of Summons Upon Incompetent Person—Appearance of General Guardian—Joint Answer—Jurisdiction of Person— Amended Complaint.—The rule that the appointment and appearance of guardians ad litem without a personal service of summons upon the incompetent is void, does not apply where the incompetent person appears by a general guardian; but in such case where the incompetent person appears by attorney, and, jointly with the general guardian, files an answer, and goes to trial upon the issues made by the pleadings, a judgment rendered against him is binding as far as any question of personal 'jurisdiction is concerned, and it is immaterial whether he was brought into the action by an amended complaint rather than by the original, or whether his guardian was wrongfully sued instead of the incompetent person in the original complaint.
The Court. Appeal from a judgment against said incompetent, Hannah J. Peterson, in favor of the plaintiff, and from a judgment in favor of the defendant Liberty S. Henderyckx, as executor of R. S. Henderyckx, upon his cross-complaint, against said Peterson, and also from an order denying the motion of said Peterson, by her guardian, to set aside said judgments.
The action was brought by the plaintiff to foreclose a mortgage executed by R. S. Henderyckx (since deceased) to Hannah J. Peterson, to secure a promissory note made by the mortgagor to the mortgagee, and which [597]note and mortgage were afterwards assigned to the plaintiff.
Afterwards said Peterson purchased the mortgaged premises from Henderyckx, and executed a mortgage thereon to him to secure a part of the purchase money.
After these transactions, and prior to the commencement of this suit, defendant Peterson was adjudged by the superior court “to be a person of unsound mind and an incompetent,” and the defendant Gottshall was appointed the guardian of her person and estate.
This action was brought by the plaintiff against “Louis Gottshall, guardian of the estate and person of Hannah J. Peterson, an incompetent, and Liberty S. Henderyckx, executor of the estate of R. S. Henderyckx, deceased,” said Peterson not being made a party.
Gottshall demurred, upon the ground that the complaint did not state a cause of action against him as guardian. Thereupon, without any ruling upon the demurrer, or order of court bringing in a new party, the plaintiff amended his complaint, and made the incompetent a party.
To this complaint Gottshall and Peterson filed a general demurrer, which was overruled by the court, and said defendants answered. The executor of Henderyckx answered, and also filed a cross-complaint against Peterson to foreclose the junior mortgage, and Gottshall and Peterson answered the cross-complaint. Findings and judgment went against Peterson, both upon the complaint and cross-complaint, the judgment being entered May 26, 1892.
On May 22,1893, pursuant to notice previously given, the attorney for Gottshall and Peterson moved the court to set aside the said judgment, upon the following grounds:
“1. That said purported amended complaint was filed herein without the leave or order of this court.
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