Thelen ex rel. Thelen v. Thelen

RICE, J. Appellants brought this action in the name of Carl Thelen and William Thelen, infants, by Louise Thelen, their guardian. The complaint alleges that Carl Thelen and William Thelen are under the age of twenty-one years; that in an action for divorce between their mother and father, the district court had previously entered a decree in which the care, custody and control of these minors was given to Louise Thelen, their mother; that the decree remains unchanged in this respect, and that Louise Thelen still has the guardianship of the minors and of their property. No demurrer to the complaint was filed, and the respondent answered to the merits. Upon the trial, when appellants rested [756] their ease, upon motion of respondent the action was dismissed and judgment entered against appellants for costs, upon the theory that Louise Thelen, their mother, had never been appointed guardian of their property. • The allegations of the complaint are not sufficient to set out the appointment of a general guardian, and the record does not disclose the appointment of a guardian ad litem, for the purposes of the suit. It appears on the face of the complaint that appellants did not have legal capacity to sue. This is ground for special demurrer. Having taken no objection upon this ground, either by demurrer or answer, the respondent must be deemed to have waived the same. (C. S., secs. 6689; 6692 and 6693; Trask v. Boise King Placers Co., 26 Ida. 290, 142 Pac. 1073; Anthes v. Anthes, 21 Ida. 305, 121 Pac. 553; Baldwin v. Second St. Cable R. Co., 77 Cal. 390, 19 Pac. 644; Blumauer v. Clock, 24 Wash. 596, 85 Am. St. 966, 64 Pac. 844.) The judgment is reversed and the cause remanded. Costs awarded to appellants. Morgan, C. J., and Budge, 'J., concur.