
    Robinson, Appellee, v. Gatch, Exr., et al., Appellants.
    (No. 7104
    Decided July 5, 1949.)
    
      Messrs. Burke & Cooney, for appellee.
    
      Mr. John N. Gatch, Mr. Frank A. Roberts, Mr. Robberi F. Groneman and Mr. Win. J. Creed, for appellants.
   Hildebrant, J.

This is an appeal on questions of law from a judgment setting aside the will of Margaret Curley, deceased, after a jury’s verdict against the will.

After the verdict and judgment entered thereon and during the pendency of a motion for new trial, it was discovered that no guardian ad litem had been appointed prior to the trial for a ten-year-old defendant, upon whom service of summons had been properly made, and to whom by item six of the will was given the sum of $1,000.

On motion, a guardian ad litem was appointed, who accepted the assignment and filed what was styled “Report of guardian ad litem” reciting inter alia that the plaintiff had voluntarily paid to the clerk of courts the sum of $1,000, to be paid to the minor defendant, so that he would thereby receive exactly the same amount bequeathed him in the will, had it been sustained. Thereafter, the court approved an entry authorizing the payment of the full $1,000 to the regular guardian of the estate of such minor.

The failure to appoint the guardian ad litem before trial was included as a ground in the motion for new trial.

What is the effect of the failure to appoint a guardian ad litem for the minor defendant, prior to the trial?

Section 11252, General Code, requiring the defense of a minor to be made by a guardian for the suit, is mandatory and not a mere matter of form. Burns v. Burns, 20 N. P. (N. S.), 116, 27 O. D. (N. P.), 510; Long v. Mulford, 17 Ohio St., 484, 93 Am. Dec., 638. The Long case is the leading Ohio case setting forth the duties of a guardian ad litem and the purpose of the appointment.

In Hasty v. Weller, 33 Ohio Law Abs., 190, the court, after reviewing the statutory and case law, made the following deductions with which this court is in accord:

“The purpose for appointing a guardian ad litem or trustee to make defense for persons under disability, is to have a competent person make a proper defense for the ward; to put in issue all of the material allegations in the petition, and to make certain that the interest of the ward is properly brought to the attention of the court: the appointment of a guardian ad litem or trustee cannot be dispensed with except by statute; it is error for the court to render judgment or decree until the answer of the guardian ad litem or trustee is filed; the failure to appoint a guardian ad litem or trustee does not render the proceedings absolutely void, but only voidable; such irregularity cannot be attacked collaterally, but it is such an irregularity as to be considered reversible error.”

It is, therefore, clear that the original judgment herein could not bind the minor defendant, and, on appeal by the guardian ad litem, this court would be required to reverse the judgment and remand the cause for retrial.

However, it is well settled in Ohio and universally held that after service of summons properly made upon a minor defendant, as in this case, the appointment of a guardian ad litem is a mere matter of procedure and not one of jurisdiction, so that a judgment entered against a minor defendant for whom no guardian ad litem was appointed is not absolutely void, but voidable only. Johnson, Gdn., v. Pomeroy, 31 Ohio St., 247, wherein it is stated in the first paragraph of the syllabus:

“A judgment rendered against an insane person, without the intervention of a trustee or guardian, and in favor of one having knowledge of the insanity, is not void.”

See, also, 21 Ohio Jurisprudence, 910, 915, Sections 51, 53, and 27 American Jurisprudence, 842, Section 121, in which it is stated:

“While the appointment of a guardian ad litem for an infant defendant is not jurisdictional in the sense that failure to make such appointment deprives the court of power to act and renders such judgment void, a judgment rendered against an infant in an action in which he was not represented by a guardian-ad litem or a general guardian is erroneous, and can be overthrown by writ of error coram nobis, or by motion in the same court, or by proper appellate proceedings, at least where the want of such representative -affects the substantia] rights of the infant.”

In 43 Corpus Juris Secundum, 279, Section 108, it is stated:

“The fact that an infant party is not represented by -a guardian ad litem or next friend, as a general rule, renders the proceedings erroneous, but the judgment entered therein is not void. * * *
“Adult parties cannot invoke the infancy of another party not represented by guardian ad litem to set aside the decree as to themselves.”

It therefore becomes apparent that the real question in this case is the validity of the settlement effected by the guardian ad litem and approved by the court.

After judgment adverse to his ward, the guardian ad litem has the right to appeal and the duty to do so if it reasonably appears to be to the advantage of the minor defendant.

By appeal here, the guardian ad litem could obtain a reversal of the judgment adverse to his ward and a retrial of the issues involved. By a compromise or settlement of the right to appeal, approved by the court, the guardian gained for the ward everything the ward would ever have been entitled to on appeal and ultimately successful retrial. It was, therefore, clearly to the advantage of the ward. The guardian ad litem effected a compromise and settlement of the right to appeal the judgment adverse to his ward by securing the payment into court for his ward the full sum of $1,000 given him by the will. This settlement ivas approved by the court, as obviously to the utmost advantage ever to be secured to the minor defendant. To disapprove this settlement now would do equally obvious disadvantage to the minor defendant.

It is universally held, as stated in 43 Corpus Juris Secundum, 302, Section 111:

“By leave of court. Ordinarily a guardian ad litem or next friend may, with the consent of the court, agree to a settlement or compromise beneficial to the infant, and the court has power to authorize it.”

In 27 American Jurisprudence, 851, Section 131, we find the following statement:

“If a compromise should seem desirable to a next friend or guardian ad litem, the proper course is for him to submit it to the court, by whom he was appointed or permitted to act, for its approval and sanction. When so approved, it will be valid and binding. If a compromise agreed to by the next friend is put into judgment, it thereby becomes the action of the court and will bind the infant. All questions of authority of the next friend of an infant to bind him by an agreement to compromise an action are eliminated by the entry of an agreed judgment based upon the compromise agreement of the parties. It has been held in a number of cases that the court has power to sanction compromises in the settlement of estates, or litigations generally, in which the property rights of infants are concerned. If the court approves a compromise after an examination of the facts, the judgment or decree is binding upon the infant.”

There is nothing in the in rem character of this suit as a will contest which prevents settlement of the minor’s right of appeal to his advantage, as approved by the court.

We find no error in the record, prejudicial to any of the appellants herein. The judgment is, therefore, affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus, opinion and judgment.  