§ 25-309 — Suit against infant; guardian for suit; when appointed; exception

Nebraska § 25-309

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Except as provided by the Nebraska Probate Code and section 43-104.05 , the defense of an infant must be by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a county judge. The appointment cannot be made until after service of the summons in the action as directed by this code.

Legislative History

Source: R.S.1867, Code § 38, p. 399; R.S.1913, § 7590; C.S.1922, § 8533; C.S.1929, § 20-309; R.S.1943, § 25-309; Laws 1975, LB 481, § 12; Laws 2022, LB741, § 2. Cross References: Nebraska Probate Code, see section 30-2201. Annotations: 1. Appointment of guardian 2. Miscellaneous 1. Appointment of guardian An infant must be defended in a lawsuit by a guardian. Carlos H. v. Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (2012). The defense of an infant must be made by a guardian for the suit. Omey v. Stauffer, 174 Neb. 247, 117 N.W.2d 481 (1962). The defense of a minor must be made by a guardian ad litem. Peterson v. Skiles, 173 Neb. 470, 113 N.W.2d 628 (1962). Appointment of guardian ad litem should not be made until after service of process in the action. Marsh v. Marsh, 173 Neb. 282, 113 N.W.2d 323 (1962). Appointment of guardian ad litem was proper. Cass v. Pense, 155 Neb. 792, 54 N.W.2d 68 (1952). Failure of court to appoint guardian ad litem for minor, under circumstances disclosed, was not prejudicial error. Kuhlman v. Schacht, 130 Neb. 511, 265 N.W. 549 (1936). Where partition suit is brought by father against minor children under fourteen, service on minors and plaintiff as father and guardian is sufficient to confer jurisdiction to appoint guardian ad litem. Beadle v. Beadle, 102 Neb. 73, 165 N.W. 953 (1917). Where minor acquires title to subject matter of action while it is pending, failure to appoint guardian ad litem will not invalidate judgment. Shelby v. St. James Orphan Asylum, 66 Neb. 40, 92 N.W. 155 (1902). Failure to appoint guardian ad litem was merely error; it does not render void the judgment entered. Manfull v. Graham, 55 Neb. 645, 76 N.W. 19 (1898). 2. Miscellaneous This section refers to the defense of infants, rather than to affirmative action on their behalf. In re Bayer's Estate, 116 Neb. 670, 218 N.W. 746 (1928). Guardian should resist payment of illegal attorney fees out of estate of ward. Ress v. Shepherd, 84 Neb. 268, 120 N.W. 1132 (1909).