Peak v. Pricer

21 Ill. 164

• Court: Illinois Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Caton, C. J.

Before the court could appoint a guardian ad litem for the infant, it necessarily had to find the fact of infancy. The act of appointing the guardian, shows that that fact was found by the court to exist, and for that purpose, and that purpose alone, such finding was conclusive of that fact. Upon a plea of infancy, formed upon the record, as a matter of defense, such preliminary finding by the court could have no influence. The court finds the fact of infancy for the purpose of appointing a guardian to make defense, upon mere suggestion, where it is not denied, and without strict legal proof that it is true, while a plea of infancy interposed by the guardian, must be sustained by legal proof, the same as any other plea. After the guardian was once appointed, and until he was discharged or removed by order of the court, the defense could only be conducted by him, and it became his duty to make a proper defense for the infant, and also the duty was imposed on the court to see that such defense was made, or, at least, to see that some defense was made. It was error, therefore, for the court to allow the plea which had been filed by the guardian, to be withdrawn by him, and to render a judgment by default against the infant.

The judgment must be reversed, and the cause remanded.

Judgment reversed.