Turner v. . Douglass , 72 N.C. 127 ( 1875 )

1. Whether the omission of the sheriff of Wake to state in his return when, where, and how he served the summons upon the defendants, was an irregularity for which the service could have been set aside, had a motion to that effect been made in due time, it is unnecessary to decide. The irregularity was waived by the subsequent action of the defendants, notwithstanding the infancy of one of them.

2. It is contended that as the defendant Douglass was an infant at the time of the service of the summons, it was void as to him. We think otherwise. An infant is properly brought into Court just as any other defendant is. We do not say that service upon a general guardian is not so.White v. Albertson, 3 Dev., 341. But when an infant has no general guardian, the service to bring him into Court must necessarily be a personal one, as a guardian ad litem is never appointed until the Court has jurisdiction of the action by the return of the summons.

The point most strongly insisted on for the defendant Douglass, is that the action was discontinued as to him by the failure of the plaintiff for several terms to move the Court to have a guardian ad litem assigned to him, by whom he might appear and plead. There are two sorts of discontinuance: First, where the plaintiff discovering that the defence is a good one, gives notice that he discontinues the action and pays the cost, or else discontinues upon motion and by leave of the Court, with or without the payment of costs, according to circumstances. It is unnecessary to say anything concerning this class of discontinuances. Second, when a plaintiff negligently fails to prosecute his action for one or more terms, whereby the defendant having been once brought into Court, has no day given him before the end of a term whereon to attend and prosecute his defence. Of this, Caldwell v. Parks, Phil. Rep., 54, is an example. And so where a summons is executed upon one of several defendants, and the plaintiff omits to renew his process against those not served, the action is discontinued as to all. For it would be unreasonable to keep those who were served, in Court indefinitely. Dick v. McLaurin,63 N.C. 185. And it may be well to note here that, that and similar cases have no direct application to this, as in this case, according to the sheriff's return, all the defendants were served. Now has the plaintiff been guilty of laches in respect to any duty imposed on him by law, to the prejudice of the defendant? It is clear that an infant can only appear and plead by guardian, and if he appear by attorney, a judgment against him will be reversed for error, or set aside on motion.

It is clear also that if a plaintiff happens to know that a defendant is an infant, he may move the Court to appoint a guardian for him. But it is no where said that he must do it, under penalty of discontinuing his action. This would be unreasonable, as the plaintiff may often times not have the means of knowing that the defendant is an infant. It is to his interest to know it, if it be so, otherwise he runs the risk of taking a judgment liable to be reversed, but we cannot conceive that he is obliged to do what may be an impossibility.

In our opinion, the Judge erred in holding the action discontinued as to Douglass, and in dismissing it as to him. We have thought it best to lay no stress on the fact that continuances appear to have been entered on the record from term to term. Because, these although as long as they stand, are valid and binding orders of the Court, yet they are open to be amended by the Judge according to the fact, by inserting them if they do not appear, when in truth and justice they ought to, and by striking them out when they ought not to be there.

4. It is contended that the several orders for the change of venue, having been made during the infancy of Douglass, and whilst he was appearing by attorney, are void, and hence the Court of Warren had no jurisdiction. This is a mistake. A judgment taken against an infant, who appears by attorney, is not irregular or void, it is only erroneous, and liable to be reversed, but valid until reversed. Pender v. Askew, 3 Dev. Rep., 149; White v. Albertson, Ibid, 341;Skinner v. Moore, 2 Dev. Bat., 138; Marshall v. Fisher, 1 Jones, 111. The same principle applies to the order for change of venue: they are not irregular of void; they are erroneous, and may be reversed or vacated on application of the infant, now that he has attained full age. There is error in the judgment below, which is reversed, and the case is remanded to be proceeded in, c.

PER CURIAM. Judgment below reversed.