On appeal from an order of the District Court of the city of Passaic, denying motion to vacate judgment.
For the appellant, Green & Green (Thomas E. Duffy, of counsel.)
For the respondent, Charles J. Bodner and Feder & Rinzler.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Plaintiff sued to recover damages for personal injuries claimed to have been the proximate result of the negligence of the defendants Ilse Quasdorf in the operation of an automobile owned by her father and co-defendant, Max Quasdorf, and recovered judgment against both defendants. The vehicle collided with a pole located in a public highway; and plaintiff, who was a passenger at the invitation of Ilse, was injured. The issue was tried by the District Court judge, sitting without a jury. The defendants appealed; and this court affirmed the judgment against Ilse, but reversed as to Max on the ground that there was no evidence that "Ilse had authority to take any one into the car and make such person an invitee of her father," and there was therefore error in the denial of his motion for a nonsuit. It was found that there was ample basis for the finding of the former's negligence in "the testimony of the excessive speed of the car, together with the evidence of the manner of the happening of the accident * * *." 13 N.J. Mis. R. 183; 177 A. 77.
After the remittitur had gone down, Ilse, who was born on July 4th, 1915, for the first time pleaded the disability of infancy. By formal petition, filed on April 17th, 1935, she averred non-age and the non-appointment of a next friend or guardian ad litem to defend the suit on her behalf, and prayed that her parents be appointed "next friends and guardians" for the purpose of making application to vacate the judgment rendered against her. An order was made designating the parents as her "next friends and guardians" for
that purpose; and the plaintiff was ruled to show cause why the judgment should not be vacated. Upon hearing the order to show cause, the court concluded that the infant defendant "was not prejudiced in anywise" by the non-appointment of a next friend to defend the action, and that, in the circumstances, she was "debarred and precluded from asserting the defense of infancy or the non-appointment of next friend;" and an order was entered appointing the infant's father her "next friend * * * nunc pro tunc as of April 5th, 1934," and denying the motion to vacate the judgment. From this "judgment and order" the infant, by her "next friends and guardians," appeals.
The state of the case settled by the District Court judge exhibits the following matters of fact: The action was instituted on May 23d, 1933, and there was personal service of the summons and state of demand upon the infant defendant. The trial was held on February 15th, 1934, when she was in her nineteenth year. Although she did not testify as a witness, she was present throughout the trial, and was represented by her present counsel, who also appeared for her father. Her parents likewise were in attendance at the trial, and were sworn as witnesses and gave testimony. The pleadings did not exhibit appellant's infancy, nor was there any disclosure of the disability prior to judgment, either by the infant or her counsel; and, in view of her age, it is fairly to be presumed that there was in her appearance no suggestion of minority.
Where, as here, the court has jurisdiction of the subject-matter, and acquires jurisdiction of the person of the infant defendant by lawful personal service of process, the judgment rendered against the infant, without the appointment of a guardian ad litem to defend on his behalf, while it may be erroneous, is not void. At the common law, jurisdiction of the person of an infant was acquired by due service of process upon the infant. Thus appellant, in virtue of the personal service of process, became a party to the action, and is bound by the court's judgment, even if tainted with error. The
failure to make timely appointment of a guardian ad litem is, at most, error in fact merely; the appointment of such a representative is in no sense jurisdictional. The judgment stands until reversed on appeal, or vacated in a direct proceeding, and is not subject to collateral attack. Van Horn v. Hann, 39 N.J.L. 207; In re Martin, 86 N.J. Eq. 265; Colt v. Colt, 111 U.S. 566; 4 S. Ct. 553; 28 L. Ed. 520; Linn v. Collins, 77 W. Va. 592; 87 S.E. Rep. 934; Reynolds v. Steel, 170 Ky. 153; 185 S.W. Rep. 820; Holloway v. MacIntosh, 7 Kans. App. 34; 51 Pac. Rep. 963; Watson v. Wrightsman, 26 Ind. App. 437; 59 N.E. Rep. 1064; 3 Bl. Com. (Cooley's 4 th ed.) 406; n.; 31 C.J. 1121. And, by the same token, the appointment of a next friend to prosecute an action for an infant plaintiff is not a jurisdictional prerequisite. Our court of the last resort has so held. Nitti v. Public Service Railway Co., 104 N.J.L. 67. There is little or no difference of ...