At common law a lunatic could be sued without the intervention of a guardian or committee. If of full age he could appear by attorney as any other defendant. But he was incompetent to employ an attorney, and so the court performed that duty for him. Buswell on Insanity, secs. 128, 132; Freeman on Judgments, sec. 152; Van Horn v. Mann, 39 N. J. Law, 213, and cases cited.
In equity, the practice was different. That court would not proceed without the intervention of a guardian to protect the interests of the insane defendant. If he had been judicially ascertained to be insane, his committee or guardian was required to conduct his defence, but if they were hostile in interest to him, or if for any reason it was deemed best for his interest, the court appointed some other person competent to protect his interest as guardian ad litem. It was regarded as error to proceed against him without such a guardian. If the insanity of a defendant in a pending suit was suggested, but had not been judicially ascertained, the court gave opportunity for an inquisition to be held, or took the necessary steps to determine the question for itself; and having ascertained that the defendant was mentally incapable of making his defence, it appointed a guardian ad litem for him and thereafter imposed upon him the restraints of infancy.
1. Insane Persons: Proceedings against. Our statute regulating proceedings against lunatics adopts substantially the former practice in equity and makes it applicable to all proceedings. Mansfield’s Digest, sec. 4960, et seq '. It is therefore incumbent upon the court in every civil case where an insane person is defendant, to see to it that he is represented upon the record by a competent guardian and it is error, as in a proceeding against an infant, to proceed without it.
2. Circuit Courts: Proceedings before special judge at chambers. For the application of the practice to this case, we may concede, as the appellee contends, that a trial had by consent before a special judge at his chambers, while the regular judge is upon the bench, may be the foundation for a subsequent valid judgment, when the special judge assumes the functions of his office in court. But no such trial could be forced upon an unwilling party, and nothing less than consent to the proceeding at chambers could justify the judgment. Butler v. Williams, 48 Ark., 227.
Did the defendant consent in this case?
When the authority of his supposed guardian was rejected by the judge at chambers, the defendant stood as though he had never been represented in the cause by him. If he was not in fact the guardian and was not authorized to appear for the defendant, as the judge found, then he had not the authority to waive the defendant’s rights. If we treat his action as void ab initio for one purpose, we must do so for all. We cannot look then, to his consent to estop the defendant. The judge ascertained upon proof what the plaintiff had previously suggested, that the defendant was insane. He was, therefore, incapable of giving consent. The silent acquiescence in the subsequent proceedings of the person designated by the judge at chambers as guardian ad litem, cannot be held to estop the defendant in a direct proceeding to vacate the judgment; nor did the mine fro tunc order made in the court on the next day as of the date of the trial at chambers, add anything to the effectiveness of the trial. Such an order is effective only when it records a previously omitted truth — it does not create, but only speaks what has been done. When it causes the record to speak a palpable untruth, it is as worthless as any other exposed error. There had been no judicial action until the time of the entry of judgment, and it was not competent for the court to cut off the defendant’s right to make his defence by guardian, by a retroacting order reciting that certain things had been previously done which had in fact no judicial existence until the order was made, When, therefore, the defendant was legally declared a lunatic and a guardian appointed to defend his interest, the evidence had been heard, the trial had and the cause practically determined. That was erroneous.
In an unreported case against an infant, at a previous term, we adjudged it to be error to take proof in a cause by deposition before the appointment of a guardian ad litem. We have frequently ruled that the appointment of such a guardian is to serve a practical and useful purpose, and not to fill an empty form. The latter is all that can be said to have been done in this case.
Reverse the judgment and remand the cause for further proceedings.