The record shows conclusively that the defendant was totally insane when the summons was served upon him. Although personal service upon the defendant was necessary tinder the statute (R. S., ch. 124, sec. 9), yet it was impotent as a means of giving the defendant notice that he had been sued and an opportunity to defend the action. Beyond all question the court had power to appoint a guardian acl litem for the defendant; and it was the duty of the court to do so whenever it was made to appear that the defendant was insane and had interests in the action which required protection. These conditions were duly proved, the guardian was appointed, and no attempt has been made to set aside the appointment.
Had the court only opened the judgment and let in the guardian to defend the action, the proceeding would clearly be within the discretion conferred upon the court by statute (R. S., ch. 125, sec. 88); for certainly the failure of the insane defendant to answer and make defense to the action was excusable neglect, if neglect at all. To that extent the order of April 27th was correctly made.
Moreover, we think that part of the order which awards restitution to the defendant is proper. Had the plaintiff retained the land, the order of restitution would be fully sustained by the case of Wakeley v. Delaplaine, 15 Wis., 555. Link purchased pendente lite, and is chargeable with constructive notice that the judgment was liable to be opened. He is in no better position than the plaintiff would have been in had he retained the land.
The only valid objection which can be urged against the order of April 27th is, that it sets aside the summons and service,-as wTell as the judgment. This was error ; arid had that order been appealed from, it would have to be modified in that particular. Or had the plaintiff moved to modify it by restoring the summons and service thereof, the motion should have been granted. But he has made no such motion. He attacks the whole order, on grounds which we do not think are well *613taken.' The court would have committed error liad it granted the motion, and it does not become us to say that it committed error in denying it. Perhaps the court might, in its discretion, have granted the plaintiff’s motion in part and denied it in part; but we are not prepared to .hold that it was bound to do so, under the circumstances of the case.
The proposition that mere formal service of process upon a person insane in fact, although not judicially declared to be insane, will enable the plaintiff to take a judgment by default which cannot be opened to let in a meritorious defense, cannot be entertained for a moment. And it is so manifestly just that the guardian of this defendant should have an opportunity to defend this action, so that the rights of the defendant may be protected, that we have not deemed it any part of our duty to search for technical or trifling errors-and defects of practice, in order to save the judgment, but have chosen rather to decide the case upon its real merits, disregarding those technical irregularities which can harm no one.
By the Court. — Order affirmed.