Beauer v. Engle

45 Pa. D. & C. 411, 1942 Pa. Dist. & Cnty. Dec. LEXIS 195

Opinion

Schaeffer, P. J.,

In this case defendant appealed from the judgment of the aider-man in favor of plaintiff for $231.16. A petition was then presented by plaintiff for the appointment of a guardian for the minor defendant in accordance with Pennsylvania Rule of Civil Procedure 2031(6).

The question arises whether a guardian of a minor defendant can be appointed after the case has been appealed to the court of common pleas.

Rule 2028 (c) 1 provides that “No change is made in the prior practice of starting personal actions against a minor in his own name and of serving him as though he were an adult.” In Goodrich-Amram Procedural Rules Service in section 2028(c) -2, it is said:

“While it is therefore necessary that some one secure the appointment of a representative for the minor defendant prior to verdict and judgment it is not made mandatory that the plaintiff should, do so immediately upon commencing the action.”

The subsequent appointment of a guardian to supervise and control an action in the minor’s behalf is essential to the rendition of a valid judgment against the minor. An action is defined by Rule 2026 as “any civil action or proceeding at law or in equity brought in or appealed to any court of record which is subject to these rules.” (Italics supplied.) In Gilbert v. Gougler (No. 2), 5 Northumb. 466, a suit was brought before a justice of the peace and defendant appealed to the court of common pleas. After the appeal was taken a guardian for the minor defendant was appointed by the court of common pleas.

The court concludes that a guardian for the minor defendant can and should be appointed at this stage of the case.

And now, February 6, 1942, the rule to show cause why a guardian should not be appointed for the minor defendant is made absolute and the court appoints Charles R. Waters as guardian of Alvin Engle, defendant in the above cause.