Anderson v. McClellan

Mr. Justice McBride delivered the opinion of the court. 1. The defendant waived his right to object to the judgment for want of proper service of summons by appearing and asking leave to answer to the merits. Mayer v. Mayer, 27 Or. 133 (39 Pac. 1002). It will not therefore be necessary to discuss the various objections raised by defendant’s counsel to the sufficiency of the service or the regularity of the judgment. 2. The defendant presented affidavits attempting to excuse his lack of diligence in making an appearance in the cause. A copy of summons and complaint was left with his mother for him on August 25, 1908, and he claims in his affidavits that he did not return home for 15 days afterward, which would be on the 9th of Septem [209] ber. No default had been taken against him at that time, and on the 11th of September his mother was appointed his guardian ad litem, and on September 12, 1908, summons directed to her as guardian was served upon her, and it appears from the affidavit of the deputy-sheriff that Geo. Bowsman was present at the time of this second service; that both he and his mother conversed with the sheriff about the case; and that Geo. Bowsman read over the papers. On the same date the guardian wrote the sheriff a letter, stating that she had shown the summons to a lawyer, and that the proceedings were fraudulent and generally berated the deputy sheriff and everybody else connected with the case. The time having expired for defendant to plead, and no answer or appearance having' been made, counsel again asked that Mr. Slater be appointed to appear for the minor defendant. The court appointed him, and the next day he appeared and declined to make any answer or. defense. 3. On the face of the proceedings it appears that the court was very indulgent in appointing a second guardian after the first had made default, and there seems to have been an honest effort to get the parties into court. While defendant Bowsman was a minor, yet it would seem that he was certainly old enough to have taken some interest in his own affairs. In this state it has been held that persons of this age are so capable of judging of their own affairs that they may be subject to a suit for asserting an unjust claim to real property. Harding v. Harding, 46 Or. 178 (80 Pac. 97). Of course, he could not appear except by guardian, but he seems not to have taken any interest in the matter in any way, although according to his mother’s statement counsel had been consulted in the matter. There is nothing to impeach the good faith of Slater except the statement of defendant that he was a client of some of the attorneys. The extent of his business as such client does not appear, and that relation would not disqualify him from serving as guard [210] ian, unless the retainer was in a matter relating to the subject in dispute. 4. As defendant was already in default by the failure of his former guardian to answer in the case, the appointment of Slater was unnecessary, and, even if he had been disqualified, no harm would have resulted. It is fair to presume that the circuit judge had knowledge of Mr. Slater’s character and qualifications, and that he would not have appointed him unless he had known him to have been a fair man. Granting or refusing a motion to open a default is a matter resting in the sound discretion of the court, and its exercise will not be disturbed, except for abuse of that discretion. Hanthorn v. Oliver, 82 Or. 57 (51 Pac. 440: 67 Am. St. Rep. 518). After a careful examination of the affidavits filed in this case, we cannot say that the court below abused its discretion in refusing to open the judgment in this case. The judgment of the lower court is affirmed. Affirmed.