I concur in the conclusion of, but not in all that is said in, the majority opinion. Especially do I dissent from those parts of the opinion holding that the appointment of a guardian for an adult incompetent by a county court vests that court with exclusive original jurisdiction to determine claims against the ward’s estate. At common law an incompetent might be sued after inquisition of lunacy and the appointment of a guardian or committee. Anonymous, 13 Yes. Jr. (Eng.) *590; 22 Cyc. 1224; Van Horn v. Hann, 39 N. J. Law, 207; Baird v. Steadman, 39 Fla. 40; Ingersoll v. Harrison, 48 Mich, 234.
The Michigan cases quoted from and commented upon in the majority opinion do not sustain that opinion.
In Nolan v. Garrison, 156 Mich. 397, cited in the majority opinion, the chief justice of that court speaking for *617it, recognizes the right of a claimant to sustain an action in the circuit court against an insane person under guardianship, but says that the power of that court is exhausted by the rendition of the judgment, “and payment must usually be enforced by suit upon the guardian’s bond.” The last utterance of the Michigan court upon this subject may be found in Love v. Merrill, 130 N. W. (Mich.) 1123, wherein they say: “The mode of acquiring jurisdiction over the person of an insane defendant in an action at law or in a suit in equity is the mode prescribed by statute for obtaining jurisdiction over the person of a sane defendant.”
In Love v. Merrill, supra, Ingersoll v. Harrison, supra, is cited with approval, so that the Michigan decisions not only do not sustain, but are at war with, the law announced by the majority of this court. Neither does Sturgis v. Sturgis, 51 Or. 10, sustain the majority opinion. Judge Eakin, writing the opinion of the Oregon court, said: “Without deciding whether an ordinary creditor of the ward’s estate may, in the first instance, bring an action therefor, it appears that this is not a liability upon the contract of either the ward or the guardian; but, if there is a liability, it is statutory, and may be established in any competent court by judgment against the ward.” (The italics are ours.) The conclusion of that court is that an ordinary judgment recovered against an incompetent under guardianship is not void, but that it can only be enforced through the county court, and not by execution against his estate.
We do not challenge the law announced in the Oregon and Michigan cases, but it does not sustain the evident drift and purport of the majority opinion. Courts of last resort quite generally hold that a judgment obtained against an insane defendant is not void and subject to collateral attack, but, if so unjust that it would be against good conscience to enforce it, equity will interfere. Withrow v. Smithson, 37 W. Va. 757; Johnson v. Pomeroy, 31 Ohio St. 247; Pollock v. Horn, 13 Wash. 626; Allison v. *618Taylor and Washburn, 36 Ky. *87, 32 Am. Dec. 68, and monographic note of Professor Freeman, p. 70. See, also, note to Spurlock v. Noe, 39 L. R. A. 779 (19 Ky. Law Rep. 1321). Neither the constitution nor any statute in precise language or by fair implication prohibits any court from entertaining suits against an incompetent, whether he be under'guardianship or not. The fact that the county court has exclusive jurisdiction to settle the accounts of guardians does not seem to the writer to withdraw from every other court authority to litigate and determine causes of action asserted against a ward. The claimant may submit his demand to the county court for adjudication, and ordinarily such is the better course to pursue. In the case at bar the guardian was appointed by the county court of Johnson county, and as we understand resides in that county; his ward is an adult, and seems to have been permitted to go at large and to reside for a time in Lancaster county. If while residing there the ward was supplied with the necessaries of life under such circumstances that the law should bind his estate to pay therefor, the creditor ought to be permitted to sue him in Lancaster county, if he could be summoned therein, to determine the amount of that obligation. If a guardian ad litem were appointed to defend, and did defend, the suit, it is not, in the writer’s opinion, the function of a court of equity to vacate the judgment, unless it is made to appear that the judgment was recovered in fraud of the ward’s rights.
The demurrer admitted the truth of all of the allegations of fact well pleaded in the petition; those statements are sufficient to justify the relief prayed for; but, if the defendant in this action is permitted to answer, he may traverse those allegations and by proof establish the validity of his claim in whole or in part. In that event a court of equity should make its relief conditional upon the guardian doing equity by paying the reasonable value of the necessaries furnished the ward, less any payments or just set-offs that may exist in the ward’s favor.
*619Neither the constitution nor any statute has abrogated tbe principles of equity in actions like tbe one at bar, and, if tbe district court is to aid tbe county court in vindicating its authority, it should go no further than it would in tbe case of any other creditor.
Reese, C. J., and Letton, J., concur in this dissent.