Hoover v. Kinsey Plow Co.

8 N.W. 658, 55 Iowa 668

• Court: Supreme Court of Iowa
• Decided: April 20, 1881
• Status: Published

Opinion

Adams, On. J.

1cont,fS:' disaffirmance. — It was erroneous to render judgment iu the action against the plaintiff before a guardian ad litem had been appointed for him, and an answer filed by the guardian. Oode, § 2566; Drake v. Hanshaw, 47 Iowa, 291. The District or Circuit Court in which a judgment has been rendered has power after the term to vacate a judgment for erroneous proceedings against a minor. Code, § '3154, sub. 5. But a petition by a judgment defendant must state the facts constituting a defense. Code, § 3157. The facts relied upon in this case as constituting a defense to the note are that the plaintiff' was a minor when he executed the note, and that he disaffirmed the same within a reasonable time after attaining to his majority. There does not appear, however, to have been any act of disaffirmance until ’the institution of these proceedings. The plaintiff attained to his majority March 9, 1879, and the petition to vacate the judgment was filed September 19,1879, being a little more than six months. "What, precisely, should be deemed a reasonable time must depend somewhat upon circumstances. No circumstance is averred in this case as tending to excuse delay in disaffirming. The plaintiff’s residence in Michigan is averred, but only to excuse delay in bringing the action. In Jones v. Jones, 46 Iowa, 466 (473), it was held that a contract not disaffirmed within six months was not disaffirmed within a reasonable time.

It is not shown that the plaintiff was not as fully cognizant of Ills rights on the day he attained to his majority as on the day he instituted these proceedings. Under the rule held in Jones v. Jones, above cited, we cannot say that the petition shows a disaffirmance within a reasonable time. It follows that in our opinion the petition does not show a defense to the note, and under the statute it was insufficient to justify the court in vacating the judgment.

ae tion against: appointment ad fitemdian The plaintiff claims, however, that the judgment is void, independent of any question as to the validity of the note. His claim in this respect is based upon the theory that the court had not acquired jurisdiction. If # u J ^e action was brought as an independent action, and not under the statute above cited, it could be maintained only upon this ground.

The court', had not of course acquired jurisdiction of the person, in such sense as to give it the power to render a personal judgment. The service of notice was only by publication, but that was sufficient service to sustain the attachment. That the court had jurisdiction to appoint a guardian ad litem no one would dispute. The appointment of a guardian ad litem, then, is not a jurisdictional fact, and a failure to appoint is merely an irregularity or error. Drake v. Hanshaw, above cited.

In our opinion the demurrer to the plaintiff’s petition was properly sustained.

Affirmed.