
    Henry Rutter, Plaintiff and Appellant, v. Claus Puckhofer et at., Defendants and Respondents.
    1. In an action in which the Court have jurisdiction of the parties and the subject matter, the omission of an infant plaintiff to procure the appointment of a guardian ad litem, is an irregularity which may be cured or waived. It does not deprive the Court of jurisdiction.
    2. The defect is cured if the plaintiff attains majority before the defendants raise any objection.
    (Before Bosworth, Ch. J., Moncrief, Robertson, Barbour and Monell, J. J.)
    Heard, November 8, 1862;
    decided, November 15, 1862.
    
      Appeal from an order setting aside the summons and complaint and all subsequent proceedings in this action.
    The action was to recover damages for the unlawful taking of the personal property of the plaintiff. The defendants were Claus Puckhofer and Charles F, Watts. They jointly answered the complaint, denying generally every allegation, and claiming the property under an. execution.
    The action was at issue about the 20th September, 1861.
    Upon affidavits that the plaintiff, at the commencement of the action, was an infant, and that no guardian had been appointed for him, the defendants moved, in February, 1862, to set aside the proceedings. The defendants’ attorney states in his affidavit that the defendants had no knowledge or information that the plaintiff was an infant, until the 3d of February, 1862.
    In opposition to the motion, the plaintiff read his affidavit, in which he swears he became of age on the 17th of December, 1861.
    It was understood that the motion was granted on the ground that the Court could have no jurisdiction of the action unless a guardian was appointed before the service of any process therein.
    
      Charles Cheney, for plaintiff, (appellant.)
    Cited Hill v. Thacter, (3 How., Pr., 407;) Code, § 144, sub. 2; Id., §§ 147,148, and notes; Hastings v. McKinley, (1 E. D. Smith, 273; affirmed Seld. Notes, No. 4, p. 19;) People v. N. Y. Com. Pleas, (11 Wend., 164;) Leopold v. Meyer, (10 Abbotts’ Pr., 40; ) Van Santv. Eq. Pr., 29,88; 1 Hoffm. Ch. Pr., 60.
    
      G. W. Cotterill, for defendants, (respondents.)
    Cited Hill v. Thacter, (3 How., Pr., 407,) Hoftailing v. Teal, (11 Id., 188,) Wilder v. Ember, (12 Wend., 191,) Comstock v. Carr, (6 Id., 526,) Ex parte Scott, (1 Cow., 33,) Arnold v. Sandford (14 Johns., 417,) 2 Saund., 212.
   By the Court—Monell, J.

It is not disputed that the plaintiff was an infant at the commencement of the action, nor that he did not procure the appointment of a guardian. There ds some doubt whether he became of age before the motion was made. Two of the defendants’ affidavits give declarations of the plaintiff, showing him not to be of age, but the plaintiff swears he became of age in December, 1861, and he proves it by the family record, usually the best evidence of the fact.

I am inclined to believe the plaintiff’s statement, and to assume that he was of age when the motion was made.

It is not necessary to decide whether the provision of the Eevised Statutes, requiring the appointment of a next friend for an infant plaintiff, before the issuing of process, is in force, or in any degree affected by the Code. Both require the appointment to be made, the one of a next friend and the other of a guardian, before the commencement of the action. For is it important to determine, whether the position of the plaintiff’s counsel, that the objection goes to the legal capacity of the plaintiff to sue, and, therefore, is waived by not setting it up by answer, is or is not sound.

I think the learned Judge who granted the motion erred in deciding that this was a jurisdictional question. The Court had jurisdiction of the parties and of the subject of the action, and the omission, therefore, to procure the appointment of a guardian was an irregularity, which might be cured or waived.

We have not been referred to any case where such omission has been held to deprive the Court of jurisdiction; and I believe no such case can be found.

In Fitch v. Fitch, (18 Wend., 513,) a capias was issued at the suit of an infant plaintiff, before the appointment of a next friend. A motion to set aside the proceedings was denied, it appearing that since the commencement of the suit a next friend had been appointed. The subsequent appointment cured the irregularity.

But in Fellows v. Niver, (Id., 563,) the question was more folly examined. The suit was commenced without a next friend. After plea pleaded the defendants moved to-set aside the proceedings. It was shown on the part of the plaintiff, that, since the commencement of the suit, a next friend had been appointed, but notice thereof had not been given to the defendant. The Court, after reviewing the several statutes on the subject, and alluding to the practice requiring the defendant to take advantage of an infant’s suing without a prochein ami, by plea in abatement, say “ the only difference between the former statutes “and the present is this; formerly the proehein arnicas “ appointed after the issuing of the process, but before a “declaration; now it should be done before process; but “now, as formerly, it is a question of regularity merely; “not, as the defendant’s counsel supposed, a question of “jurisdiction. It is a question of practice, and the irregularity may be waived under the present statute as well “ as under the old statutes. In both periods, the next “Mend must be appointed before declaration, and the “appointment must appear in the commencement of '“the declaration. The practice after declaration is the “same now as formerly. If this suit was commenced by “ writ, the defendant might have moved, before he pleaded, “ to set aside the writ; but, having pleaded to the merits, “he- has waived the irregularity, and admitted that the “plaintiffs are recti in curia. If he has any remedy now, “it is not by motion.”

This case covers the whole ground, and is decisive against the defendants, unless it can be said that their answer, having been put in without any knowledge or information, of the irregularity, cannot be deemed to be a waiver of it. The subsequent steps of a party in an action, in ignorance of an irregularity, do not always.operate as a waiver of the irregularity.. But there is no proof of such ignorance except the attorney’s affidavit. ‘

The answer, however, in this case is, that before the motion was made the plaintiff had attained to his majority, when the necessity for, as well as the offices of a guardian, had ceased. I entertain no doubt that, after the infant becomes of age, the guardian may be released and the suit may proceed in the name of the infant alone. The infant then becomes sui juris; he is responsible for costs, and can appoint his own attorney.

For these reasons we are of opinion the order should be reversed, without costs.  