Childs v. Lanterman

.Harrison, The plaintiff brought this action to quiet her title to certain lands in the county of Los Angeles, making Roy S. Lanterman, the appellant herein, one of the defendants. An answer to the complaint was filed by Stephen M. White, as attorney for all the defendants, including the appellant, and upon a trial of the cause, judgment was rendered in favor of the plaintiff. When the action was commenced, and at the [390]time of the trial, the appellant was an infant, and did not attain his majority until July 20, 1890. No order of court was made appointing a guardian ad litem for him, and the record does not contain any evidence that the summons iii the action was served upon him, although it is not alleged or shown that service was not in fact made upon him. The findings of the court were filed July 12, 1890, but the judgment, although signed as of that date, was not filed or entered until July 21st. Thereafter, a motion for a new trial was made in behalf of the defendants—Roy S. Lanterman, the appellant herein, making and filing an affidavit in support thereof—and this motion being denied, the defendants appealed from the order and also from the judgment. Upon this appeal the order and judgment were affirmed. (Childs v. Lanterman, 95 Cal. 369.) After the remittitur had been filed in the court below, viz: March 9, 1893, a motion was made on behalf of Roy S. Lanterman to set aside the findings and judgment against him, and to strike out the answer filed on his behalf, upon the ground of his infancy at the time the answer was filed and trial had, and the want of any authority in the attorney to appear in his behalf. This motion was denied, and the present appeal is from that order.

Although it is provided in section 372 of the Code of Civil Procedure, that when an infant is a party he must appear either by his general guardian, or by a guardian ad litem appointed by the court, yet a judgment rendered against an infant, in which no guardian ad litem has been appointed, is not for that reason void (1 Black on Judgments, sec. 195; Emeric v. Alvarado, 64 Cal. 600; Kemp v. Cook, 18 Md. 130; 79 Am. Dec. 681); and a judgment rendered against him in an action in which he has appeared by an attorney will be upheld as fully as though he had appeared in person. (Barber v. Graves, 18 Vt. 290; Marshall v. Fisher, 11 Pa. St. 111; Townsend v. Cox, 45 Mo. 401.) The appearance by an attorney in his behalf will be assumed as authorized by [391]