Rice ex rel. Jones v. Bolton

Ladd, J. — ■ In an amendment to the petition the plaintiff alleged the execution of a mortgage on the land to Nash, and as against him asked full relief. Nash, by his attorney, filed a separate answer. But the notice of appeal was neither served on him nor his attorney. For this reason the motion to dismiss the appeal as to Nash is sustained. [656] „ I. Pleadings: filing; discretion. II. Tbe defendants, other than the administrator and Nash, answered on the 6th day of August, 1900. Afterward the files were lost, and the parties agreed that copies might be. substituted. The trial occurred on the 25th day of June, 1902, when the cause was submitted and taken under advisement, with an agreement that a decree might be entered in vacation. On the 9th day of July, 1902, during the same term of court, said defendants, without leave, filed an “ answer to meet proofs,” setting up adverse possession. On the 5th day of August following, and during the same term, the court entered an order that “ the defendant is permitted to file amended answer.” On November 15, 1902, said defendants, without farther leave, filed a substituted answer. The plaintiff moved that these pleadings be stricken for that they raised new issues, and were filed without permission, long after the cause had been submitted. The motion was overruled on the 30th of January, 1902, the following entry being made: “ Tt appearing that the original answer of J. B. Bolton ei al. was lost, and cannot be found, it is ordered that the entry filed November 15, 1902, together with the amendment filed July 9, 1902, shall be regarded as a substituted answer for the one lost.” The record contains nothing to indicate that any new issues were raise.d by the substituted answer, and whether leave to file was obtained is wholly immaterial, for the subsequent approval of the filing of a pleading is quite as effective as though permission had been granted in advance. Dilatory tactics in making up issues cannot be approved, but such matters are in the control of the trial court, and, save upon a clear showing of abuse of discretion, this court will not interfere. [657] 2. appointment ad utm™ tate’s land; attack. [656] II. Mary E. Rice died January 18, 1890, seised of the land in controversy, and leaving her surviving a husband, David E. Rice, who was appointed administrator of her estate, and one child, the plaintiff, then seven years old. The land was incumbered by two mortgages, both of which were [657] due, to the amount of $930, aaid was worth from $1,200 to $1,600. Tbe administrator applied immediately for an order to sell, and in the notice thereof served on plaintiff fixed “ before noon of the second day of February term, A. D. 1890, of said court, which will commence on the 18th day of February,” as the time in which to appear and defend. Instead of waiting until then, the guardian ad litem was appointed on the first day of the term, immediately filed an answer, and the order of sale was entered on the same day. It is claimed that these orders were without jurisdiction. The necessity of defense by a guardian ad litem is not questioned. Section 3482 of the Code. And undoubtedly the appointment may not be made until “ after the required service of the notice in the action.” Section 3483, Code. As the plaintiff was under fourteen years of age, the appointment might have been on the application of a friend or of the plaintiff in the action. Section 3484, Code. But the statute does not designate the time when the guardian ad litem shall be appointed. It would seem that this should not be done until jurisdiction has been acquired by completed service. In no case called to our attention, however, has an appointment before that time, the. record of which has been subsequently approved, been declared illegal. In Allen v. Saylor, 14 Iowa, 435, the service was not-such as to confer jurisdiction at any time, and on this ground it was held that, “ unless there is a complete service upon the minor, the court has no jurisdiction to appoint a guardian ad litem.” In Good v. Norley, 28 Iowa, 188, there was no service whatever. In Lyon v. Vanatta, 35 Iowa, 521, the notice required the minor to appear at a time when no term of court was held, and was adjudged no notice. In Haws v. Clark, 37 Iowa, 355, the time fixed for appearance was not on a regular term day of the court, and was declared no notice at all. See, also In re Hunter, 84 Iowa, 388. In Wickersham v. Timmons, 49 Iowa, 267, an appointment of a guardian ad litem after the trial had begun was approved. [658] Had the child been of an ag'e when the law allowed him to select a guardian, probably he might have selected one in advance. McConnell v. Adams, 3 Sandf. 729. But the appointment of a guardian ad litem is not jurisdictional. Had it been omitted entirely, this would have been an irregularity which would not have rendered the judgment void. Drake v. Hanshaw, 47 Iowa, 291; Myers v. Davis, 47 Iowa, 325; Hoover v. Kinsey Plow Co., 55 Iowa, 668. And, as a general rule, the entry of judgment after service, but before the time allowed for appearance, is also regarded as an irregularity, to be. corrected in a direct proceeding as by appeal, motion, or the like. 1 Black on Judgments, section 85; White v. Crow, 110 U. S. 183 (4 Sup. Ct. 71, 28 L. Ed. 113); Mitchell v. Aten, 37 Kan. 33 (14 Pac. Rep. 497, 1 Am. St. Rep. 231); Whitewell v. Barbier, 7 Cal. 54; Town of Lyons v. Cooledge, 89 Ill. 529 ; Porter v. Partee, 7 Humph. 169. The same rule is applicable to a judgment against an infant. It might have been corrected during the term by any person who chose to interest himself in the infant’s behalf on the day or thereafter during the term he was required to appear by a friend, or possibly by an amicus curiae. Nothing of the sort was done, and the record was subsequently approved. It cannot now be attacked collaterally. Spurgin v. Bowers, 82 Iowa, 187. Whether such an order might be set aside under section 4091 is not involved in this action. 3. Sale of inland: de-scnption; presumption, IV. The order entered by the court directed the sale of the south half of the quarter section, whereas the deceased was owner of the east half, though the latter was described in the petition and the conveyance of the administrator arid the subsequent deeds. No order what- • ever was entered for the sale of the northeast quarter of the southwest quarter of the section. Possibly the omission might have been made by mistake, but that issue is not before us, and, in the absence of any averment to the contrary, we must treat the record as a verity, and as exemplifying exactly what was intended. [659] 4. Limitation of ACTIONS. V. As this action was begun before plaintiff attained bis majority, the statute of limitations had not run against him. See, sections 3447, 3453, Code. VI. The plaintiff claims rents and profits on the land since 1890, and, of course, is entitled thereto since the beginning of this action. As a farther accounting must be had in any event, we have concluded to remand the cause to the district court for the purpose of ascertaining the entire amount to which plaintiff is entitled. With the modification indicated, the decree will be affirmed, and the cause remanded for such accounting.