Appeal from the Circuit Court of DuPage county; the Hon.
RUSSELL W. KEENEY, Judge, presiding. Reversed and remanded and
with directions for a new trial.
JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 1, 1957.
In 1953, John T. Blincoe as plaintiff (appellant and cross-appellee here) filed suit in the Circuit Court of DuPage county against Curtis C. Miller, Jr. as defendant (appellee and cross-appellant here) to recover damages. Defendant Miller's appearance was entered by his attorney and he filed an answer and counterclaim for damages arising out of the same occurrence. Defendant replied to the counterclaim. On these issues, a trial by jury was had on November 15, 1954, resulting in verdicts finding both defendant and counter-defendant not guilty. After overruling post verdict motions, the court entered judgments on the verdicts.
The case was reviewed by this court on plaintiff's appeal and defendant's cross-appeal. John T. Blincoe v. Curtis C. Miller, Jr., 11 Ill. App.2d 247 (abstract). The record in that appeal disclosed that Miller was a minor and nowhere did it affirmatively show the appointment of a guardian ad litem for the minor, Miller. This court refused to review any of the errors urged for the reversal as to the merits assigned on the appeal or cross-appeal, but held "Under the authorities, the judgments are voidable and must be reversed." Citing, Collins v. Hastings, 283 Ill. 304; Thurston v. Tubbs, 250 Ill. 540; Kroot v. Liberty Bank of Chicago, 307 Ill. App. 209; Skaggs v. Industrial Commission, 371 Ill. 535.
This court in reversing the trial court said, "The judgment in favor of the defendant in response to the issues made by the original complaint and answer is reversed, as is also the judgment rendered in favor of the counter-defendant upon the issues made by the counterclaim and reply thereto and this cause is remanded to the Circuit Court of DuPage county, Illinois, for further proceedings not inconsistent with this opinion."
On July 9, 1956, this court issued its mandate to the Circuit Court of DuPage county, reversing and remanding the cause directly to the trial court. The mandate provided as follows:
"On this day came again the said parties, and the Court, having diligently examined and inspected as well the record and proceedings aforesaid, as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, are of the opinion that in the record and proceedings aforesaid, and in the rendition of the judgments aforesaid, there is manifest error.
"Therefore, it is considered and ordered by the Court, that for that error, and others in the record and proceedings aforesaid, the judgment in favor of the defendant in response to the issues made by the original complaint and answer is reversed, as is also the judgment rendered in favor of the counter-defendant upon the issues made by the counterclaim and reply thereto and this cause is remanded to the Circuit Court of DuPage County, Illinois, for further proceedings not inconsistent with the opinion of this Court filed herein.
"And it is further considered and ordered by the Court that the said appellant recover of and from the said appellee, his costs by him in this behalf expended, to be taxed and that he have execution therefore."
After the mandate was filed in the Circuit Court of DuPage county and the cause redocketed in that court, the defendant and counter-plaintiff on July 18, 1956, filed a motion for the appointment of a guardian ad litem nunc pro tunc as of November 15, 1954, which date was the first day of trial of this cause in the Circuit Court of DuPage county. After notice of the motion, the court entered a written order appointing Mrs. Curtis Miller guardian ad litem for defendant and counter-plaintiff Curtis C. Miller, Jr., nunc pro tunc as of November 15, 1954. In this order it was recited that it appeared to the court from the record that the court appointed Mrs. Curtis Miller guardian ad litem for the defendant and counter-plaintiff at the commencement of the trial on November 15, 1954, and that upon making such appointment, the court instructed counsel to prepare an order of appointment, that said order was not prepared and that the oral pronouncement appointing the guardian ad litem was never otherwise reduced to writing or spread of record.
On October 9, 1956, the defendant and counterclaimant, Curtis C. Miller, Jr., filed his motion requesting the court pursuant to the mandate of the Appellate Court, to reinstate the judgment on the verdicts returned at the trial on the grounds that Curtis C. Miller, Jr., is now an adult and that he now ratifies and affirms all and each act done in the defense and trial of that cause, including the trial, verdicts, judgment, and appeal and his participation therein by counsel. In support of said motion there was attached thereto, the birth certificate showing that Curtis C. Miller, Jr., was born on June 16, 1935, and his affidavit of ratification and affirmation.
After notice and hearing the Circuit Court over the objections of plaintiff and counter-defendant entered its order that judgment be and is hereby reinstated and entered on the verdicts returned on the trial of that cause.
Plaintiff and counter-defendant (appellant) contend that the trial court was without power to reinstate the judgment and erred in so doing.
When this case was first here on appeal this court declined to pass upon the merits. The reversal was predicated solely on the grounds that the record failed to affirmatively show that the court had appointed a guardian ...