Opinion
Opinion filed March 6, 1928.
1. — Appellate Practice — Appeals — Bill of Exceptions — Failure to File — Record Proper Reviewable. An appeal will not be dismissed because of the failure of appellants to file their bill of exceptions, as they are entitled to have the case reviewed on the record proper.
2. — Infants — Judgments — Minor Defendant — Guardian Ad Litem — Failure to Appoint — Judgment Voidable. A judgment rendered against an infant who was not represented by a guardian ad litem is merely voidable, and may be nullified in a direct proceeding for that purpose.
3. — Same — Same — Same — Same — Same — Remedy Against Enforcement of Judgment — Injunctions. In a suit to enjoin the enforcement of a judgment of a justice of the peace rendered against an infant not represented by a guardian ad litem held injunction proceeding was the proper remedy.
4. — Same — Same — Same — Twenty-year-old Female — Guardian Ad Litem — Must Be Appointed. Under Laws of 1921, p. 399, a female twenty years of age at the time a judgment was rendered against her was a minor, and it was necessary to appoint a guardian ad litem to represent her.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Anthony F. Ittner, Judge.
AFFIRMED.
John V. Lee and Frank Lee for appellant, East Side Packing Company.
(1) The failure of the justice at the commencement of the suit to appoint a guardian ad litem for respondent, a woman of the discretionary age of twenty years, was not error. Audsley v. Hall, 303 Mo. 451, 261 S.W. 117; Sec. 370, R.S. 1919, Session Acts 1921, page 399, art. II; chap. 12, R.S. 1919. (2) Merely on the ground of infancy the justice judgment cannot be avoided. Robison v. Floesch Constr. Co., 291 Mo. 34, 236 S.W. 332.
George P. Burleigh for respondent.
(1) Respondent is a minor under the Missouri laws. Missouri Session Acts 1921, page 399. (2) "The word `infant' used in the Code of Civil Procedure, and the word `minor' used in the Statute on guardians, are not distinguishable in legal significance. Each word applies to a person who has not attained the age of majority as prescribed by law." Audsley v. Hale, 303 Mo. 451, 261 S.W. 117 (l.c. 123), citing 31 Corpus Juris 986. (3) After the service and return of process against an infant defendant the suit shall not be any further prosecuted until a guardian for such defendant be appointed, even though he shall not appear on the return day of such process. Revised Statutes 1919, section 2761. (4) The judgment of a justice of the peace in a suit against an infant defendant in which he failed to appoint a guardian ad litem for the infant defendant is voidable and may be set aside in a proper proceeding, and an injunction suit is the proper proceedings under the present state of facts. Lehew et al. v. Brummell, 103 Mo. 546, 15 S.W. 765; Weiss v. Coudrey et al., 102 Mo. App. 65, 76 S.W. 730.
This is a suit to enjoin the enforcement of a judgment of a justice of the peace. No bill of exceptions having been filed, there is nothing for review except the record proper. Plaintiff, who is respondent here, filed her motion to dismiss the appeal because of the failure of the defendants to file their bill of exceptions. The motion to dismiss the appeal is overruled, as defendants are entitled to have the case reviewed on the record proper. The injunction is sought on the ground that plaintiff was a minor at the time the judgment was rendered against her.
The petition alleges that judgment was rendered against plaintiff in favor of the East Side Packing Company on December 15, 1925, and that at that time she was a minor of the age of twenty years, and that no guardian ad litem was ever appointed by said justice, before whom the suit was brought, as provided for by the Statutes of Missouri; that she was an infant; that garnishment proceedings were instituted before the defendant, Henry Pfeffle, Justice of the Peace, looking toward the collection of this judgment out of her wages.
The defendant, East Side Packing Company, filed a separate answer, admitting the rendition of the judgment against the plaintiff, and denied the other allegations in the petition. The court granted an injunction enjoining the defendants from proceeding further toward the collection of the judgment, and an appeal was then taken to this court.
The sole question here on appeal is whether or not the pleadings will support the judgment rendered, or to state it in another way, it becomes only necessary to determine whether or not it was necessary for the justice of the peace to appoint a guardian ad litem for plaintiff, a woman of the age of twenty years, and whether or not a judgment would be voidable rendered against such person without the appointment of a guardian ad litem.
While in some jurisdictions it has been held that a judgment obtained against a minor, not represented by a guardian ad litem, is absolutely void and subject to collateral attack, the law in this State is that a judgment rendered against an infant who was not represented by a guardian ad litem, is merely voidable, and may be nullified in a direct proceeding for that purpose. We think the injunction proceeding would be the proper remedy, and in fact, about the only remedy plaintiff could avail herself of under the facts of this case. Defendant cites the case of Audsley v. Hall, 303 Mo. 451, 261 S.W. 117, as authority for the proposition that as plaintiff was twenty years of age at the time judgment was rendered, it was not necessary to appoint a guardian ad litem to represent her. The old statute (Sec. 370, R.S. 1919) has been repealed and a new section enacted since the decision in that case, and plaintiff was a minor until she was twenty-one years of age. [Laws of 1921, p. 399.]
The appellant also urges that a judgment cannot be impeached or set aside by plaintiff merely on the ground that she is an infant. Plaintiff is not attacking this judgment merely on the ground that she was an infant, but on the ground that she being an infant, was not represented by a guardian ad litem. The judgment against plaintiff seems to have been obtained in total disregard of the positive terms of the statute, and the judgment of the circuit court in granting the injunction was evidently proper. [Weiss v. Coudrey, 102 Mo. App. 65, 76 S.W. 730.] The judgment of the circuit court is accordingly affirmed. Daues, P.J., and Becker, J., concur.