Wyatt v. . Berry

*122 ConNor, J. The judgment in the Superior Court of Mitchell County, at November Term, 1919, in the action entitled, “T. C. Robinson v. Laura Stinchcombe et al." and relied on by the defendants in this action as an estoppel against the plaintiff, is void on its face as against her, and is, therefore, subject to collateral attack by her in this action. The plaintiff was not a party to the action in wbicb the judgment was rendered. At the time the judgment was rendered, sbe was an infant o.f nine years of age. It is true that a guardian ad litem was appointed by the court to protect ber rights in the subject-matter of the action, and that tbis guardian ad litem filed an answer to the complaint, denying the allegations therein. Tbis answer, however, does not disclose what interest, if any, the infant bad in the land described in the complaint, nor does it present to the court the facts on wbicb ber interest in the land rests. No summons bad been issued for or served on the infant prior to the appointment of the guardian ad litem, as required by statute, C. S., 451. Tbis appears from the record, wbicb was introduced as evidence at the trial. It. has been held by tbis Court tbat where a judgment has been rendered against an infant on whom summons was not served as required by statute (C. S., 483(2), but for whom a guardian ad litem was appointed by the court, and an answer was filed by such guardian ad litem in good faith, the judgment is conclusive on the infant, notwithstanding the irregularity, until set aside on motion in the cause. See Welch v. Welch, 194 N. C., 633, 140 S. E., 436, Groves v. Ware, 182 N. C., 553, 109 S. E., 568, Harris v. Bennett, 160 N. C., 339, 16 S. E., 217. There is no decision of tbis Court, however, to the effect tbat such judgment is conclusive and binding on the infant, where it appears upon the face of the record, as it does in the instant case, tbat the interests of the infant in the subject-matter of the action were not presented to the court in good faith by the guardian ad litem, and passed upon by the court. Tbe facts disclosed by the record in tbis case, show the wisdom of the language used by Bynum, J., in Moore v. Gidney, 75 N. C., 34, who in speaking of the statutory requirements for a valid judgment against an infant, says: “So careful is the law to guard the rights of infants, and to protect them against hasty, irregular, and indiscreet judicial action. Infants are in many cases the wards of the courts and these forms enacted as safeguards thrown around the helpless, who are often the victims of the crafty, are enforced as being mandatory and not directory only. Those who venture to act in defiance of them must take the risk of their action being declared void or set aside.” Tbe judgment is void as against tbe plaintiff in tbis action not only because sbe was not a party to tbe action in wbicb it was rendered. It appears upon its face tbat tbe judgment was rendered by consent of tbe *123 parties to tbe action. For that reason, if it be conceded that the plaintiff was a party defendant by virtue of the order of the court, and the appointment of the guardian ad litem for her, the judgment is void. It is well settled in this jurisdiction, at least, that in the case of infant parties, the next friend, guardian ad litem, or guardian cannot consent to a judgment against the infant, without an investigation and approval by the court. McIntosh North Carolina Practice and Procedure p. 121, Keller v. Furniture Co., 199 N. C., 413, 154 S. E., 614, Rector v. Logging Co., 179 N. C., 59, 101 S. E., 502, Bunch v. Lumber Co., 174 N. C., 8, 93 S. E., 374, Ferrell v. Broadway, 126 N. C., 258, 35 S. E., 467. The judgment in this action is erroneous and for that reason is Reversed-