Newins v. Baird , 26 N.Y. Sup. Ct. 306 ( 1879 )

Barnard, P. J.:

Section 1218 of the Code of Civil Procedure provides that a judgment shall not be taken against an infant, defendant, until twenty days have expired since the appointment of a guardian •ad litem for him. The plaintiff foreclosed a mortgage against 'George W. Townsend and others. Townsend was an infant, «owning two equal undivided thirds of the property. Upon due application of the infant, he being over fourteen years of age, a guardian ad litem was appointed, who put in a general answer. The case was tried and judgment entered before the expiration of twenty days subsequent to the appointment of the guardian ; but the guardian appeared upon the trial, and no objection was made to the judgment, and no appeal taken. The purchaser xefases to take title, upon the ground that the judgment is void as against the infant, for the reason that twenty days did not elapse after the appointment of the guardian. We think the ■objection of no force.

Section 1218 had no reference to judgment taken against infants other than' by default. In case the infant appears and makes an issue, it may be noticed for trial at once, like other issues. “At anytime after the joinder of issues” either party may serve notice of trial. (Code of Civil Procedure, § 977.)

The submitted case does not disclose whether the trial was upon plaintiff’s or the infant’s notice. After issue joined, a guard-ian ad litem had the right to control the due and orderly management of the action. He could accept short notice of trial,. but he could admit nothing to sustain the action. No injury to-the infant’s interests is pretended. The claim, solely, is that by section 1218 there must be an entire judicial inaction for twenty days after a guardian is appointed, whether issue be joined or not.

We think this is not the true meaning of the section.

There should be a judgment for the plaintiff upon the submitted case, with costs.

Dykman and Pratt, JJ., concurred.

.Judgment for plaintiff on submitted case, with costs.