Cohen v. Home Life Insurance , 273 Mich. 469 ( 1935 )

The following opinion was prepared by the late Justice NELSON SHARPE and I adopt it, with slight addition thereto.

Prior to July 5, 1933, Theresa Cohen was adjudged to be a mentally incompetent person and was committed to the Ypsilanti State hospital for the insane. On that day a suit was brought against her by the defendant insurance company to foreclose a mortgage on certain real estate owned by her, and the summons was served on her at the hospital. No guardian ad litem was appointed to act for her. Her default was entered, decree rendered on May 10, 1934, sale had, and an order entered in confirmation thereof on July 16, 1934.

On August 28, 1934, a motion was filed in the foreclosure suit by Rubin Cohen,^* guardian of Theresa Cohen, for leave to appear for her, to set aside her default for the reason that no guardian ad litem had been appointed for her, and for the appointment of a guardian ad litem to defend in her behalf. It was denied on October 9, 1934. On January 14, 1935, the bill of complaint herein was filed to set aside the decree of foreclosure and the sale based thereon for the reason that the failure to appoint a guardian ad litem for the plaintiff rendered the proceedings void and of no force or effect. On motion of the attorney for the insurance company it was dismissed for the reason as stated by the trial court —

"That my denial of defendant's (plaintiff in this suit) motion in the foreclosure suit to set aside default and decree based thereon is res judicata of all matters stated in the bill of complaint in this cause."

Plaintiff has appealed therefrom.

Section 14038, 3 Comp. Laws 1929, reads in part as follows:

"After the service of process or declaration, if the suit be commenced by declaration, against a defendant who is an infant, or who is insane or otherwise mentally incompetent, said suit shall be defended by the guardian of the estate of such defendant, if there be one; otherwise such suit shall not be further prosecuted until a guardian ad litem for such person shall be appointed, in the manner following."

The statute applies alike to infants and persons who are insane. In Schimpf v. Wayne Circuit Judge, 129 Mich. 103, it appeared that a judgment had been rendered against an infant without the appointment of a guardian ad litem for him. The court said (104):

"There can be no doubt from the record that due service of process was had upon the defendant. The judgment was not void because of the failure to appoint a guardian ad litem, but voidable merely."

This holding was approved in DeGuzman v. Wayne Circuit Judge,225 Mich. 606, 610.

In 14 R. C. L. p. 615, in discussing the validity of judgments or decrees against insane persons, the writer states —

"That the rule is substantially uniform that such judgments or decrees are not void but merely voidable under circumstances that would render any other judgment or decree voidable, and that they will be sustained when collaterally attacked."

See, also, Graham v. Nippress, 222 Mich. 386.

The petition filed by plaintiff's guardian to set aside her default was, in effect, one to vacate the decree entered. It was denied by the court. As was said by this court in Knoth v. A. Harvey's Sons Manfg. Co.,212 Mich. 415, 421:

"The matter having once been litigated and a determination having been reached thereon, and no appeal having been taken from that determination, the parties are not now entitled by independent bill to relitigate the same questions, even though additional facts are set up in the bill and additional prayers appended thereto."

In Curtis v. Curtis, 250 Mich. 105, the mentioned statute was again considered and there held that:

"It was the duty of plaintiff to have informed the court of the fact (infancy of defendant) and to not proceed without the appointment of a guardian ad litem. Failure to do so, however, did not oust the court of jurisdiction, for the statute mentioned is procedural only, but did render the decree voidable if questioned in a direct proceeding such as this (Petition to vacate decree)."

The bill herein cannot serve the purpose sought, for review now, if any, can only be had by application for and allowance of a delayed appeal as provided by Court Rule No. 60 (1933).

The decree dismissing the bill is affirmed, with costs to defendant Home Life Insurance Company.

NORTH, FEAD, and BUTZEL, JJ., concurred with WIEST, J.

^* The opinion of the late Justice NELSON SHARPE asserted Edward Leed was guardian of Theresa Cohen. Mr. Leed was appointed her guardian ad litem on January 14, 1935. — REPORTER.