
    Filmore v. Russell.
    1. Under the code, the service of summons upon an infant over the age of fourteen years, but not upon the guardian, no guardian ad litem being appointed, but the record reciting that the infant defendant appeared by his next friend as well as by attorney, held sufficient service, and the appearance authorized.
    3. When it is necessary to appoint a guardian ad litem for a minor over fourteen years of age, the minor, or some one in his behalf, must apply for the appointment within ten days after service. It would seem that the court is authorized to appoint on application only when the minor is fourteen years of age.
    3. When full opportunity is given to set aside a default for irregularity, it must be presumed the court below offered ample protection to the rights of the defendant under the law.
    
      Error to District Court óf - Arapahoe County.
    
    The facts are sufficiently stated in the opinion.
    Mr. J. F. Welbobn and Messrs. France & Rogers, for plaintiff in error.
    Messrs. Browne and Putnam, for defendant in error.
   Stone, J.

The defendant in error, Russell, was plaintiff in the suit below. The first count in the complaint alleges an indebtedness for necessaries upon an account stated between plaintiff and defendant, by and through the guardian of the defendant, Filmore, and avers that one Patterson is the legal guardian of said defendant.

The second count charges the indebtedness for tuition, books, boarding, etc., at defendant’s request, and at the request of his legal guardian.

The third count is for goods sold and delivered, and for money paid for use of defendant-at •his request and that of such guardian.

Summons was served upon the defendant personally, but not upon the .guardian.

The defendant appeared by J. F. Welborn, his attorney, and demurred to the complaint upon the grounds: . First, that it does not state the place where the contract sued on was made. Second, that it shows that defendant is a minor with a legal guardian, and does not show that the •contract was made and the alleged necessaries furnished by order and direction of the probate court.

The record recites that afterwards the parties appeared, the plaintiff by S. E. Browne, his attorney, and the defendant “by J. F. Welborn, his next friend and attorney.” And the demurrer coming on to be heard, was overruled.

Thereupon, afterwards, no plea or answer having been filed by defendant, a default was taken, and judgment entered for plaintiffs.

Afterwards, Welborn appears as attorney for defendant, and moves to vacate the judgment for the reason that he, said attorney, “was absent from the state, or was not notified of the overruling of the demurrer;” that the defendant “is a minor under the age of twenty-one years;” that no guardian was appointed by the court, and that defendant has a good defense ■ to the action. The. court thereupon ordered that affidavits for and against the motion be filed by the respective parties, if they desired; and upon a hearing of the motion, the same was denied. No exceptions appear to have been taken, but the assignments are predicated upon alleged errors appearing by the record proper.

The questions raised by these assignments are, was there proper service, no service being made upon the guardian of the infant defendant; and was there sufficient appearance, no guardian ad litem being appointed, but the record reciting that the defendant appeared by his next friend as well as by attorney.

Section 8 of the code declares that “ where an infant is a party, he shall appear by next friend of' his own selection or by guardian.” And section 9 provides that the guardian shall be appointed, “upon the application of the infant, if he be of the age of fourteen years,” and (where defendant) apply within ten days after the service of the summons, “and; if under fourteen, or neglects so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant.”

Respécting service upon parties defendant, section 87 further provides that, “if the suit be against a minor under the age of fourteen years, service shall be madq by delivering a copy of the writ to such minor personally, and also to his or her father, mother or guardian.” * * *

In the motion to vacate the judgment, which is sworn to, the defendant is averred tobe a minor “under the age of twenty-one years. ” Upon this we must presume he was fourteen, in the absence of anything in the record to show that he was of a less age.

He therefore had a right to choose his own guardian, and service is only to be made upon him alone. Sec. 37, Code; Gray v. Palm, 9 Cal. 688. This disposes of the question of service, when the infant is fourteen years of age.

As to the question of appearance, we have seen by reference to section 9 of the code, that where necessary to appoint a guardian to appear and defend, the minor, if fourteen, must make his selection and apply for such appointment within ten days- after service; or if he neglects, so to apply, the court may appoint upon the application of another. In this case he neglected to apply; no one else applied on his behalf, and it would seem that the-court is authorized to appoint only upon such application where the minor is fourteen years old.

But under section 8 of the- code, such defendant may also appear b jprochein ami, and the record recites that-he-did so appear.

The authorities cited by counsel for plaintiff in error in support of the doctrine that a judgment against an infant without appointing a guardian ad litem is erroneous and voidable, lay down the general rule which applies either in the absence of governing statutes, or under statutes differing from our own. In respect to proceedings by or against infants, we are to be governed by our statutory provisions, so far as they prescribe rules of procedure.

Since full opportunity was given the defendant to show why the judgment upon default should be set aside if' irregularly entered, it must be presumed that the court belotv afforded ample protection to the rights of the defendant under the law.

For these reasons we conclude that the service was-proper and the appearance sufficient, and perceiving no-error in the record, the judgment is accordingly affirmed..

Affirmed.  