The plaintiff treated the defendant in the court below as of full age, and after serving him with process, made default, and the defendant obtained a judgment against him. The plaintiff has taken measures to appeal from that judgment, and alleges the infancy of the defendant as one ground of appeal. This motion was made by the plaintiff to obtain the appointment of a guardian ad litem of the defendant, and was refused at special term. From the order refusing the appointment the plaintiff appeals.
It appears that no return has yet been made to this court, and until that is done there is no good reason why the court should exercise jurisdiction in the case, except for the purpose of compelling a return. It may be the appeal is not perfected, or from some other cause the return will not be made, and in such case further proceedings will be useless.
After the return is made, and further proceedings become necessary, then there should be a guardian appointed. The cause is then pending in this court, and the respondent is an infant, who can appear in no other way, and against whom no judgment would be valid without such appointment. The propriety of the appointment of a guardian for an infant on appeal is stated by the court in Moody v. Gleason, 7 Cow. 480. If it is proper to make the appointment on the request of the infant, it is equally so for the plaintiff, if the infant neglects to make the application.
The motion was properly denied at special term, and the order then made is affirmed without costs, and without prejudice to a renewal of the motion hereafter at special term, when a return shall have been filed.
Ordered accordingly.