ARNOLD J.
This action was commenced by plaintiff, Helen Stephenson, by filing her petition in the district court of Okfuskee county on February 18, 1943, against Robert L. Stephenson for divorce and for custody of their minor child, the grounds for the action being cruelty and nonsupport. Defendant, Robert L. Stephenson, filed an answer and cross-petition in which.he denied the allegations of cruelty and non-support and sought a divorce and custody of the minor child, the grounds of his cross-petition being. adultery of plaintiff and general immprality.
These parties were married on the 30th day of June, 1940, at which time both of them were minors. The child of the- marriage at the date of the trial was two years of age. The defendant, Robert L. Stephenson, became of age December 11, 1943. Plaintiff filed her answer to the cross-petition in which she denied the charge of adultery and general immorality, and further alleged that plaintiff and defendant lived together as husband and wife after the time alleged by defendant as covering the alleged acts of infidelity. The testimony on the trial was voluminous, but the'judgment of the trial court granting plaintiff a divorce on the ground of cruelty is not clearly against the weight of the evidence. Plaintiff was granted exclusive custody of the minor child, Patricia Stephenson, and defendant was ordered to pay $50 per month for the support of said child beginning on the 5th day of July, 1943. As alimony the court awarded the plaintiff certain bonds owned by the defendant and all of the household property owned by the parties.
After motion for new trial had been filed and overruled, the defendant appeared by Harry Stephenson, his father and next friend, and filed a motion to vacate the judgment on both jurisdictional and non jurisdictional grounds, One of the grounds of this motion to vacate was “for fraud practiced by the successful party in obtaining the judgment or order,” as set out in 12 O. S. 1941 § 1031, subd. 4. On July 19, 1943, a full hearing was had upon this motion to vacate, defendant producing the oral testimony of four witnesses together with documentary evidence in support of his contentions. This motion to vacate the judgment was overruled, exceptions granted, notice of appeal given in open court, and time extended for making and serving case-made.
The principal contention of plaintiff in error, Robert L. Stephenson, is that the trial court was without jurisdiction in the action for the reason that he was a minor at the time the action was filed and at the time of the trial and that no guardian ad litem was appointed to defend for him. It appears, however, that by his answer and cross-petition he sought affirmative relief without suggesting to the court his minority and without requesting the appointment of a guardian ad litem. His contention that the judgment is void for want of jurisdiction or power to enter the judgment is without merit. Though, as he contends, there was no service of summons upon him, he could and did file his cross-petition seeking a divorce and custody of his infant daughter. By so doing he instituted a cause of action, as he had a right to do. The provisions of 12 O.S. 1941 § 226 became applicable to him in the prosecution of his cross-petition. Under this section an order appointing a next friend is not a prerequisite to the right to sue. Griffin v. Culp, 68 Okla. 310, 174 P. 495; Baldridge v. Smith, 76 Okla. 36, 184 P. 153; Horner v. Reid, 177 Okla. 154, 57 P. 2d 857. By filing his cross-petition the minor defendant invoked the jurisdiction of the court over his person. The jurisdiction thus invoked is not and cannot be restricted to a determination of the relief sought in the cross-petition. He was in court for all purposes of the action, and therefore the judgment, like a judgment entered against a minor properly served, is at most voidable and maintains until set aside or modified in an appropriate proceeding. It is obvious that the cases relied upon by defendant on this point are not applicable. In the case of Walkenhorst v. Lewis, 24 Kan. 330, that court in passing upon a similar contention there made said:
“A judgment rendered against a minor without the appointment of a guardian ad litem may be voidable but is not void. Such appointment can only be made after jurisdiction has been acquired, and then the failure to appoint does not oust the jurisdiction but is simply an error to be corrected by proceeding in error.”
The rule there announced has been adopted and followed in this state. In the case of Slemp v. City of Tulsa, 139 Okla. 76, 281 P. 280, the third paragraph of the syllabus reads:
“Failure to appoint guardian ad litem for infant defendant properly served does not render judgment void, but at most voidable.”
An infant may be' sued or sue either in law or in equity. It is the policy of the law generally and of our statute (12 O.S. 1941 §§ 226, 228) to protect the interests of minor litigants. The foregoing sections were designed to accomplish this purpose. If, however, the interests of a minor, over whom the court has jurisdiction, are shown to have been 'fully protected and preserved, his application by and through his father, an attorney, as next friend, to vacate a decree of divorce based upon jurisdictional and non jurisdictional grounds should be denied. Such a judgment is not void, but at most voidable, though the court failed to appoint a guardian ad litem as required by the statute, and such error does not constitute sufficient cause against the judgment where the record in its entirety shows no prejudice to the defendant minor, but on the contrary shows that the interests of said infant were fully protected. A judgment against a minor, though concededly erroneous for failure of the court to appoint a guardian ad litem to represent him and protect his interests, being voidable only, is valid and binding until reversed or set aside in some appropriate proceeding. The same presump- ' tions are indulged in favor of a judgment against an infant who was properly in court as are indulged in favor of a judgment against an adult, and it will therefore be presumed that the court protected his rights, in the absence of showing to the contrary; the burden is on the applicant, whether still an infant or not, to establish the grounds to support his application to vacate a voidable judgment against him and he must show an injustice has been done him. See 31 C.J., pg. 1166, §§ 355, 360, 363, 364, 365-369, and pg. 1112, § 248, and the cases therein cited.
The statutory right of an infant to attack a voidable judgment may be exercised at any time after the entry of the judgment and before the expiration of the time prescribed (12 O.S. 1941 § 96). The motion of the defendant minor constituted an action or proceeding by the minor such as is authorized to be prosecuted by next friend as provided in 12 O.S. 1941 § 226. The proceeding constituted an attack upon the voidable judgment theretofore entered against him. In the hearing conducted in support of the motion of the infant to vacate the judgment, he did not, as it was his burden to do, show any injustice to him by reason of the failure of the court to appoint a guardian ad litem to protect and preserve his rights, but, on the contrary, in our judgment, the record affirmatively shows that his rights were fully protected and he suffered no prejudice on account of the failure of the court to appoint a guardian ad litem for him.
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ARNOLD J.
This action was commenced by plaintiff, Helen Stephenson, by filing her petition in the district court of Okfuskee county on February 18, 1943, against Robert L. Stephenson for divorce and for custody of their minor child, the grounds for the action being cruelty and nonsupport. Defendant, Robert L. Stephenson, filed an answer and cross-petition in which.he denied the allegations of cruelty and non-support and sought a divorce and custody of the minor child, the grounds of his cross-petition being. adultery of plaintiff and general immprality.
These parties were married on the 30th day of June, 1940, at which time both of them were minors. The child of the- marriage at the date of the trial was two years of age. The defendant, Robert L. Stephenson, became of age December 11, 1943. Plaintiff filed her answer to the cross-petition in which she denied the charge of adultery and general immorality, and further alleged that plaintiff and defendant lived together as husband and wife after the time alleged by defendant as covering the alleged acts of infidelity. The testimony on the trial was voluminous, but the'judgment of the trial court granting plaintiff a divorce on the ground of cruelty is not clearly against the weight of the evidence. Plaintiff was granted exclusive custody of the minor child, Patricia Stephenson, and defendant was ordered to pay $50 per month for the support of said child beginning on the 5th day of July, 1943. As alimony the court awarded the plaintiff certain bonds owned by the defendant and all of the household property owned by the parties.
After motion for new trial had been filed and overruled, the defendant appeared by Harry Stephenson, his father and next friend, and filed a motion to vacate the judgment on both jurisdictional and non jurisdictional grounds, One of the grounds of this motion to vacate was “for fraud practiced by the successful party in obtaining the judgment or order,” as set out in 12 O. S. 1941 § 1031, subd. 4. On July 19, 1943, a full hearing was had upon this motion to vacate, defendant producing the oral testimony of four witnesses together with documentary evidence in support of his contentions. This motion to vacate the judgment was overruled, exceptions granted, notice of appeal given in open court, and time extended for making and serving case-made.
The principal contention of plaintiff in error, Robert L. Stephenson, is that the trial court was without jurisdiction in the action for the reason that he was a minor at the time the action was filed and at the time of the trial and that no guardian ad litem was appointed to defend for him. It appears, however, that by his answer and cross-petition he sought affirmative relief without suggesting to the court his minority and without requesting the appointment of a guardian ad litem. His contention that the judgment is void for want of jurisdiction or power to enter the judgment is without merit. Though, as he contends, there was no service of summons upon him, he could and did file his cross-petition seeking a divorce and custody of his infant daughter. By so doing he instituted a cause of action, as he had a right to do. The provisions of 12 O.S. 1941 § 226 became applicable to him in the prosecution of his cross-petition. Under this section an order appointing a next friend is not a prerequisite to the right to sue. Griffin v. Culp, 68 Okla. 310, 174 P. 495; Baldridge v. Smith, 76 Okla. 36, 184 P. 153; Horner v. Reid, 177 Okla. 154, 57 P. 2d 857. By filing his cross-petition the minor defendant invoked the jurisdiction of the court over his person. The jurisdiction thus invoked is not and cannot be restricted to a determination of the relief sought in the cross-petition. He was in court for all purposes of the action, and therefore the judgment, like a judgment entered against a minor properly served, is at most voidable and maintains until set aside or modified in an appropriate proceeding. It is obvious that the cases relied upon by defendant on this point are not applicable. In the case of Walkenhorst v. Lewis, 24 Kan. 330, that court in passing upon a similar contention there made said:
“A judgment rendered against a minor without the appointment of a guardian ad litem may be voidable but is not void. Such appointment can only be made after jurisdiction has been acquired, and then the failure to appoint does not oust the jurisdiction but is simply an error to be corrected by proceeding in error.”
The rule there announced has been adopted and followed in this state. In the case of Slemp v. City of Tulsa, 139 Okla. 76, 281 P. 280, the third paragraph of the syllabus reads:
“Failure to appoint guardian ad litem for infant defendant properly served does not render judgment void, but at most voidable.”
An infant may be' sued or sue either in law or in equity. It is the policy of the law generally and of our statute (12 O.S. 1941 §§ 226, 228) to protect the interests of minor litigants. The foregoing sections were designed to accomplish this purpose. If, however, the interests of a minor, over whom the court has jurisdiction, are shown to have been 'fully protected and preserved, his application by and through his father, an attorney, as next friend, to vacate a decree of divorce based upon jurisdictional and non jurisdictional grounds should be denied. Such a judgment is not void, but at most voidable, though the court failed to appoint a guardian ad litem as required by the statute, and such error does not constitute sufficient cause against the judgment where the record in its entirety shows no prejudice to the defendant minor, but on the contrary shows that the interests of said infant were fully protected. A judgment against a minor, though concededly erroneous for failure of the court to appoint a guardian ad litem to represent him and protect his interests, being voidable only, is valid and binding until reversed or set aside in some appropriate proceeding. The same presump- ' tions are indulged in favor of a judgment against an infant who was properly in court as are indulged in favor of a judgment against an adult, and it will therefore be presumed that the court protected his rights, in the absence of showing to the contrary; the burden is on the applicant, whether still an infant or not, to establish the grounds to support his application to vacate a voidable judgment against him and he must show an injustice has been done him. See 31 C.J., pg. 1166, §§ 355, 360, 363, 364, 365-369, and pg. 1112, § 248, and the cases therein cited.
The statutory right of an infant to attack a voidable judgment may be exercised at any time after the entry of the judgment and before the expiration of the time prescribed (12 O.S. 1941 § 96). The motion of the defendant minor constituted an action or proceeding by the minor such as is authorized to be prosecuted by next friend as provided in 12 O.S. 1941 § 226. The proceeding constituted an attack upon the voidable judgment theretofore entered against him. In the hearing conducted in support of the motion of the infant to vacate the judgment, he did not, as it was his burden to do, show any injustice to him by reason of the failure of the court to appoint a guardian ad litem to protect and preserve his rights, but, on the contrary, in our judgment, the record affirmatively shows that his rights were fully protected and he suffered no prejudice on account of the failure of the court to appoint a guardian ad litem for him.
For the reasons indicated the defendant, by his motion to vacate on both jurisdictional and nonjurisdictional grounds, wherein he was represented by next friend as authorized by law, is precluded by the judgment entered therein.
One of the grounds of the motion to vacate was that plaintiff, Helen Stephenson, was not a resident of the State of Oklahoma for the period of time-necessary to authorize her to maintain the action. However, in his original answer filed in the case defendant expressly admitted her residential qualifications, and this answer was verified. Other testimony was also introduced by plaintiff on the matter of her residence. The testimony on this point is amply sufficient to support the determination of the trial court that she was a resident of Oklahoma as required by our statute.
Upon the entire record this court is of the opinion that the judgment of the trial court was correct, that its order requiring the payment of $50 a month for child support is not unreasonable, and that the judgment and order of the trial court should be in all things affirmed.
HURST, V.C.J., and OSBORN, BAY-LESS WELCH, CORN, and DAVISON, JJ., concur. RILEY, J., dissents.