Wolford v. Oakley
Superior Court of Buffalo
Before the commencement of this action, the infant plaintiff procured the appointment of 'a guardian, and the suit proceeded to issue, and was upon the calendar of the present civil term for trial. A motion -is now made by the defendant to dismiss the complaint and action, on the ground that the guardian was, at the time of his appointment and still is, an infant.
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Before the commencement of this action, the infant plaintiff procured the appointment of 'a guardian, and the suit proceeded to issue, and was upon the calendar of the present civil term for trial. A motion -is now made by the defendant to dismiss the complaint and action, on the ground that the guardian was, at the time of his appointment and still is, an infant. The fact is not controverted, but the plaintiff satisfactorily shows that the guardian acted under a pardonable misapprehension as to his having attained his majority, and had only lately ascertained his mistake. The plaintiff asks…
1Opinion of the CourtSheldon, J.
—The omission to procure the appointment of a guardian for the infant plaintiff, was an irregularit}’, and not a jurisdictional question. This court has jurisdiction of the parties and of the subject of the action, and the irregularity established is such a one as may be cured or waived (Fitch agt. Fitch, 18 Wend., 513; Fellows agt. Niver, 18 Wend., 563; Rutter agt. Puckhofer, 9 Bosw., 638).
It is claimed, that in this case, the irregularity is waived by answering upon the merits, thereby admitting that the plaintiff is rectus in curia, and that if the defendant has any remedy now in the…
2Cases cited2 opinions
- Rutter v. PuckhoferThe Superior Court of New York City · 1862
- Giles v. CainesNew York Supreme Court · 1805
3Cited by2 opinions
- Rima v. Rossie Iron WorksNew York Court of Appeals · 1890
- Power v. LenoirMontana Supreme Court · 1899