Defendant in this case petitioned the Kent circuit court, in chancery, to vacate the decree of divorce granted plaintiff, January 26, 1928, on the grounds that she then was, and is now, a minor, and entered no appearance; that no guardian ad litem was appointed, and plaintiff, after filing the bill, cohabited with her and assured her that the suit for divorce had been abandoned. Plaintiff answered the petition, denied the alleged cohabitation and assurance, set up his subsequent marriage, and asked the court to appoint a guardian ad litem, nunc pro tunc, as of the time of filing the bill, although expressing the belief that defendant Was not then a minor. The court denied the petition to vacate the decree, and appointed a guardian adlitem, as requested by plaintiff. Petitioner appealed. *Page 107
No testimony was taken upon this application, and, therefore, in considering the appeal, we take as true the averments of petitioner's age. The order appointing the guardian ad litem, after decree, was a nullity. The appointment served no purpose, and besides could not be entered nunc pro tunc.
In Freeman v. Wayne Probate Judge, 230 Mich. 455, we pointed out the office of a nunc pro tunc order, and stated that it is permitted to perfect a record of judicial action taken, and not to supply some judicial action omitted.
The parties were married June 15, 1925, and a child was born July 28, 1926. The bill for divorce was filed October 6, 1927, and the decree granted January 26, 1928. The petition to vacate the decree was filed September 7, 1929.
The statute, 3 Comp. Laws 1915, § 12381, provides that, after service of process upon an infant defendant, the suit shall not be further prosecuted until a guardian ad litem is appointed. The court had jurisdiction of the subject-matter and of the parties. Defendant, though an infant, was before the court by summons, duly served upon her. The court was not informed of the fact of defendant's age. It was the duty of plaintiff to have informed the court of the fact and to not proceed without the appointment of a guardian ad litem. Failure to do so, however, did not oust the court of jurisdiction, for the statute mentioned is procedural only, but did render the decree voidable if questioned in a direct proceeding such as this. When a decree is voidable for error in procedure, it is a matter of judicial discretion whether it shall be vacated. Petitioner's delay in bringing the matter to the attention of the court is not wholly excused by her infancy. While an infant may not be held guilty of laches, yet inexcusable delay has a bearing upon judicial discretion. That *Page 108 the failure to appoint a guardian ad litem does not render the decree void is well settled.
In Schimpf v. Wayne Circuit Judge, 129 Mich. 103, it was held (syllabus):
"A judgment against an infant is not void because no guardianad litem was appointed to represent him, but is voidable merely."
In Manfull v. Graham, 55 Neb. 645 (76 N.W. 19, 70 Am. St. Rep. 412), it was stated:
"Where infants are regularly summoned, the failure to appoint a guardian ad litem is an error only and does not render void the judgment entered."
In Linn v. Collins, 77 W. Va. 592 (87 S.E. 934, 936, Ann. Cas. 1918C, 86), it was stated:
"The court had jurisdiction of the subject-matter and of all the parties to that suit; the infant defendant was before it by process duly served on him. The bill did not aver his majority, and there was nothing in the record bringing it to the court's attention. * * * That it is reversible error to proceed against an infant without the appointment of, and answer by a guardianad litem for him, is also settled law. * * * But this court has never decided that an infant may not be brought before the court by process, and, being thus in court, that the failure to appoint a guardian ad litem for him is error affecting jurisdiction and rendering void the court's judgment or decree against such infant. Jurisdiction of the person of an infant can be obtained as well by due service of process, as by the appointment of a guardian ad litem. Such was the common-law method of obtaining jurisdiction of infants, as well as of adults. 22 Cyc. p. 673. Having thus obtained jurisdiction in this case, if the court's attention had been called to the fact of infancy, it would have been its duty to appoint a guardianad litem. *Page 109 The failure to appoint such guardian was reversible error, but not such as showed want of jurisdiction in the court. It was error in procedure only."
Since the decree plaintiff has remarried. This, however, does not prevent action by the court. In the decree plaintiff was awarded custody of the child. Petitioner was aware of the decree and the disposition made of the child, and the instincts of a mother, it would seem, should have led her promptly to take the action she now prosecutes. We find no abuse of discretion in refusing to vacate the decree for want of appointment of a guardian ad litem.
The question of whether there was cohabitation between the parties after the filing of the bill cannot be decided upon the petition and answer, but commands the taking of proofs.
If, after filing the bill for divorce, plaintiff resumed marital relations with defendant and assured her that the suit was abandoned when he had no such intention, he perpetrated a fraud upon defendant, and, by proceeding to decree thereafter and concealing from the court the fact of such resumption of marital rights, such fraud, being extrinsic, will authorize the court to vacate the decree. See McGuinness v. Superior Court,196 Cal. 222 (237 P. 42, 40 A.L.R. 1110).
The order denying the petition to vacate the decree is set aside, and the proceeding remanded to the circuit court to take proofs upon and adjudicate the issue of fraud.
Petitioner will recover costs of this court.
BUTZEL, CLARK, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred. McDONALD, J., did not sit. *Page 110