And therefore a party seeking to avoid a judgment upon the ground that he was of unsound mind at the time of its rendition must assail the judgment directly, as it is not vulnerable upon a collateral attack. Boyer v. Berryman (Ind.) supra.

And a judgment against one who has been adjudged insane and placed in an asylum, but for whom no guardian has been appointed, and of whose insanity no notice was taken in the case, is not subject to collateral attack. Denni v. Elliott (1883) 60 Tex. 337.

That a judgment rendered against one insane at the time cannot be impeached in a collateral action was stated in Noel v. Modern Woodmen (Ill.) supra, where it was held that the insanity of a member of a society at the time of his expulsion could not be set up by his widow in an action upon the benefit certificate.

A judgment against one incompetent at the time of its rendition is not subject to collateral attack by his subsequently appointed guardian in trespass to try title, as against the purchaser of the incompetent's real property upon a sale under the judgment. Ewing v. Wilson (Tex.) supra.

And a judgment in a mortgage foreclosure, rendered without the appointment of a guardian for the insane mortgagor, who had not been judicially declared of unsound mind, will not be annulled in a suit therefor by the heirs of such insane mortgagor, as against a bona fide purchaser of the mortgaged premises at the foreclosure sale, since, although the judgment might be vacated in a direct proceeding, if no innocent purchaser had acquired rights under it, such judgment, being regular on its face, and the court having jurisdiction of the subject-matter and of the defendant, is not subject to collateral attack, except as to infirmities shown in the judgment roll. Dunn v. Dunn (Cal.) supra.

The insanity of the plaintiff at the time of the commencement of, and at the rendition of the judgment in, an action to enforce a vendor's lien upon real property, where such insanity was not suggested during the proceedings, and there is no suggestion of it on the

face of the record, is not available to set aside and hold for naught the judgment on a collateral attack by those claiming title through such plaintiff, in an action by them of ejectment to recover possession of such real property against others claiming title through the vendee. Wilkinson v. Lehman-Durr Co. (1907) 150 Ala. 464, 124 Am. St. Rep. 75, 43 So. 857.

Equity will not set aside a deed to a purchaser without notice, upon a sale under a judgment against an insanè person rendered on personal service, without his appearance in person, or by attorney or guardian ad litem, in a tax suit, pursuant to statute, in which the court had jurisdiction over his person and over the subject-matter of the action. Heard v. Sack (1884) 81 Mo. 610.

And it was held in White v. Farley (1886) 81 Ala. 563, 8 So. 215, in an action to redeem land sold at an execution sale upon a judgment in an action of trover, that, since insanity is no defense to such an action, a sale of the land made under execution on such judgment could not be vitiated by the mental status of the defendant in execution, either at the time of the judgment or of the sale.

A judgment rendered, without the interposition of a guardian ad litem, against one, insane at the time, in favor of one who had knowledge of the insanity, cannot be impeached, in an action in aid of execution, by a subsequently appointed guardian of the insane judgment debtor, without alleging fraud or unfairness on the part of the judgment creditor. Johnson v. Pomeroy (1877) 31 Ohio St. 247.

And it was held in Cecil v. Cecil (1912) 149 Ky. 605, 149 S. W. 965, that the fact that a cestui que trust was insane, and unrepresented by a guardian ad litem, at the time of the rendition of a judgment in an action by the trustee for the settlement of his accounts as such, did not render the judgment subject to collateral attack in an action by the subsequently appointed committee of such lunatic against the trustee, to compel him again to pay to such committee the money which he had paid to the luna

tic pursuant to the judgment in the prior action.

And in Karr v. Crevelling (1879) 2 N. J. L. J. 119, a suit to restrain the sale of the real property of an incompetent by judgment creditors, on the ground that the judgments were recovered during the incompetency of the judgment debtor, who did not appear and was not represented by a guardian in the actions, where it appeared that some of the judgments were based on debts contracted before the defendant became incompetent, and others upon debts thereafter contracted, the court held invalid the judgments based upon debts contracted during the incompetency of the judgment debtor, but sustained the judgments based upon the debts contracted while he was competent, and allowed the sale to proceed to pay the latter judgments.

The insanity of the mortgagor at the time of the rendition of the judgment against him in a mortgage foreclosure action, in which he appeared by attorney, after personal service of the summons, does not render the judgment subject to collateral attack by him upon a writ of entry. Lamprey v. Nudd (1854) 29 N. H. 299.

And a default judgment against one, insane at the time and not represented by a guardian ad litem, is not subject to collateral attack in an action of ejectment by such insane defendant against the grantee of the purchaser at the sheriff's sale under the judgment. Bobell v. Wagenaar (1922) 106 Or. 232, 210 Pac. 711.

But it was held in Ex parte Roundtree (1898) 51 S. C. 405, 29 S. E. 66, that where one who was incompetent at the time of the commencement of the action and the rendition of the judgment was not represented by a guardian ad litem, the court acquired no jurisdiction of his person, and the judgment against him was, for that reason, properly vacated. In this case the party against whom the judgment was rendered was adjudged an incompetent in a proceeding de lunatico inquirendo instituted less than a year after the judgment, and a guardian ad litem was also appointed for the pur

pose of avoiding the judgment. It is to be noted that in this case the attack was direct, and an alternative ground of the decision was surprise and excusable neglect, it appearing that an attorney who had appeared in the action, after withdrawing a demurrer, without giving any notice, withdrew from the case because he had not been paid, but consented to the judgment against the incompetent; and it was apparently unnecessary to go so far as to hold that the judgment was rendered without jurisdiction.

And a judgment against one who at the time of its entry was an incompetent, having been committed by an order of the court to an institution for the insane, is void for lack of jurisdiction, where no committee of the person and property, or guardian, had been appointed for him, and the order of the court permitting service upon a third person was not broad enough to enable him to look after the interests of the incompetent. United States Trust Co. v. Kiddle (1916) 95 Misc. 381, 158 N. Y. Supp. 1011.

A judgment at law is neither void nor voidable merely because the plaintiff is a lunatic at the time of its rendition. Speck v. Pullman Palace Car Co. (1887) 121 Ill. 33, 12 N. E. 213; Leonard v. The Times (1893) 51 Ill. App. 427.

II. Direct attack.

a. Contested judgment.

The mere fact that a defendant who appeared by attorney, but was not represented by a guardian ad litem, was insane at the time of the rendition of a judgment against him, does not render such judgment erroneous. King v. Robinson (1851) 33 Me. 114, 54 Am. Dec. 614. But the court said in that case that if it appeared that, on account of his condition, a defendant, insane at the time of the rendition of the judgment, did not have a fair trial, and that injustice was done, the court, upon petition, might grant a review of the judgment.

Equity will not vacate a judgment at law merely because of the insanity of the judgment debtor at the time of the rendition of the judgment, but will

require the aid of other facts from which the conclusion must follow that the judgment is inequitable, and cannot be executed without injustice. Maloney v. Dewey (1889) 127 Ill. 395, 11 Am. St. Rep. 131, 19 N. E. 848.

And a judgment against one insane at the time, who appeared by attorney in an action at law upon a debt contracted by him when of sound mind, will not be set aside upon the ground of his insanity. Stigers v. Brent (1879) 50 Md. 214, 33 Am. Rep. 319.

The insanity of the claimant, who became insane at the commencement of the suit, is no ground for the vacation of a judgment dismissing his claim, and for a new trial, after his restoration to reason, where it does not appear to the court that a different result would probably be reached upon a new trial, or that injustice was done on the original trial. Bramhall v. United States (1870) 6 Ct. Cl. (Fed.) 238.

And in Hare v. Ft. Smith & W. R. Co. (1912) 104 Ark. 187, 148 S. W. 1038, an action by the guardian of a defendant in a condemnation proceeding, adjudged to be of unsound mind before the commencement of such proceeding, to vacate the judgment therein, where it appeared that no mention of the fact of her insanity was made in the condemnation proceeding, and no statutory guardian appeared for her, and no guardian ad litem was appointed to defend for her, and no error appeared in the pleadings, record, or trial of the condemnation proceedings, the court, after calling attention to the statutory provisions that a judgment should not be vacated on motion or complaint until it was adjudged that there was a valid defense to the action in which the judgment was rendered, and that no judgment can be rendered against a person of unsound mind until after a defense by his guardian, or by a guardian appointed for such purpose, stated that the judgment rendered in the condemnation proceeding might be vacated, the instance of the insane defendant, only on a showing that she had a meritorious defense.

In San Luis Obispo County v. Simas (1905) 1 Cal. App. 175, 81 Pac. 972, it

was unsuccessfully urged upon appeal from a judgment in eminent domain proceedings that the court erred in signing the findings and judgment after counsel for the defendant, owner of the property condemned, had requested time within which to make proof of such owner's insanity, the court stating that the cause had been tried and submitted, and verdict returned, and that the rights of the parties were to be determined as they existed at the time of such submission, and that even in the event of death after verdict or decision, judgment might be entered.

And in Hubbard v. Williams (1916) 144 Ga. 566, 87 S. E. 780, the court dismissed, on general demurrer, a petition to set aside a judgment rendered against an idiot in an action instituted by her without a guardian, where it appeared that the action was brought by the idiot and two plaintiffs to enjoin a process directed against all of them, and that no fraud was alleged against the attorney who instituted the action in behalf of the idiot, and that the complaint in the action was verified by the idiot before a notary public, and that the petition was filed eleven years after the rendition of the judgment which was sought to be set aside.

And in Leonard v. The Times (1893) 51 Ill. App. 427, where it appeared that, after the commencement of an action, the plaintiff was adjudged to be temporarily insane and confined to an asylum at the time of the dismissal of the action for want of prosecution, and, after regaining his liberty, moved to set aside the order of dismissal, the court held that the fact of his insanity and confinement at the time of the dismissal afforded no ground for relief.

Equity will not vacate a judgment against a partnership as against a partner because he was insane at the time of the rendition of the judgment, and not represented by a guardian ad litem in the action, where the judgment was rendered upon a partnership debt, and the partnership appeared by counsel employed by a competent member of the firm, which counsel looked after the interests of the insane part

ner as well as those of the others, and there is no defense available which was not interposed in the action at law, and no injustice was done. Johnson v. Cook (1914) 179 Mich. 117, 146 N. W. 343.

And a judgment will not be set aside because of the insanity, at the time of its rendition, of the defendant, who was not represented by a guardian ad litem, where he was represented by counsel, his relatives were present at the trial, and his deposition was used, and no question of his sanity was raised. FARMERS' & M. BANK v. DUKE (reported herewith) ante, 215.

A judgment rendered, without the appointment of a guardian ad litem, against the maker of a note, who was sane at the time of the giving of the note, but insane at the time of the rendition of the judgment, will not be set aside, where he has no defense to the action. Atwood v. Lester (1898) 20 R. I. 660, 40 Atl. 866.

And in Staton v. Byron (1907) 32 Ky. L. Rep. 246, 105 S. W. 928, where, after the judgment in an action between the heirs of a decedent for a division of the estate, some of the parties made a motion to set aside such judgment upon the ground that one of them was a lunatic at the time of its rendition, it was held that, while the fact of such lunacy would have been effective had the lunatic been alive at the time of the motion to set aside the judgment, he having died prior thereto, leaving as his only heirs the other parties to the action, they were not affected by, and had no right to complain of, the irregularity in taking judgment against the lunatic.

But it was held in Demilt v. Leonard (1860) 11 Abb. Pr. (N. Y.) 252, that equity may set aside an unfair judgment against an incompetent who was not represented by a guardian ad litem, and a judgment for costs against an insane plaintiff on the ground of a former settlement of the matters in controversy was set aside, because such settlement was made with the plaintiff when she was a lunatic, and under such circumstances as to require the setting aside of the judg

ment.

34 A.L.R.-15.

And where it appears that in an action against one who has been adjudged insane and committed to an asylum, service of the summons and complaint was made upon him and upon the superintendent of the asylum, and that the return of service made by the sheriff incorrectly states that such superintendent is the general guardian of the lunatic, and judgment is rendered against him inadvertently and irregularly by the court, without the appointment of a guardian ad litem, as required by statute, the court may, of its own motion, set aside the judgment. Winslow v. McCarthy (1918) 39 Cal. App. 337, 178 Pac. 720.

And a motion to vacate such judgment upon the ground that, at the time the judgment was rendered, the defendant was insane, and that no guardian, either general or ad litem, had been appointed to represent him in the action, may be granted, without an affidavit of merits, since such ground cannot be said to be chargeable to the mistake, inadvertence, surprise, or excusable neglect of the defendant, but rather to the inadvertence of the court. Ibid.

b. Default or confessed judgment.

A default judgment against one insane at the time, but for whom no guardian has been appointed, will be set aside upon a prima facie showing of a defense to the action. Watson v. Horner (1916) 178 Iowa, 499, 159 N. W. 1032.

And equity will vacate a default by default for the purpose of permitting a defense on the merits, when it appears that the defendant was insane at the time the summons was served upon him and at the time of the rendition of the judgment, that the court was unaware of the defendant's disability, that the defendant made no appearance and was unrepresented, and that he had a good and meritorious defense, and that the application to open the default was taken before the rights of innocent third parties intervened, and was made promptly after the existence of the judgment became known to the applicant, the administrator of the defendant's estate. Lutter v. Neu

And equity will vacate a default judgment against an accommodation maker of a note, who was insane at the time of the rendition of the judgment, and not represented in the action by a guardian ad litem, where the court was well aware of the fact that he was insane and mentally incompetent to defend a suit, and the Statute of Limitations was a complete defense, which precluded any recovery against him. Godde v. Marvin (1905) 142 Mich. 518, 105 N. W. 1112.

A default judgment against a person admitted to have been non compos mentis at the time was reversed on a writ of error brought by his administrator after his decease in Leach v. Marsh (1859) 47 Me. 548, 74 Am. Dec. 503.

The court may open a default judgment against an insane defendant, under a statutory provision authorizing the court to relieve a party from a judgment rendered against him through his mistake, surprise, or excusable neglect, upon the required statutory affidavit of merits. Bond v. Neuschwander (1893) 86 Wis. 391, 57 N. W. 54.

And in Judd v. Gray (1901) 156 Ind. 278, 59 N. E. 849, where, after the filing of a cross complaint in the action, the plaintiff's counsel dismissed the action and withdrew his appearance, and thereafter a default judgment was taken upon the cross complaint against the plaintiff, who at the time was insane and not under guardianship, but had not been judicially declared to be of unsound mind, it was held that his failure to answer and make a defense to the action instituted under the cross complaint was excusable within the meaning of a statute providing that a party may be relieved from a judgment taken against him through excusable neglect, and that, therefore, his subsequently appointed guardian was entitled, under such section, to have such default judgment set aside, upon the ground that a judgment rendered against an insane person under such circumstances, if permitted to stand, while not void, would,

at least, be inequitable, and would operate unjustly upon one who was incompetent at the time to make the necessary defense.

In Bean V. Haffendorfer Bros. (1887) 84 Ky. 685, 2 S. W. 556, 3 S. W. 138, and in Southern Nat. L. Ins. Co. v. Ford (1913) 151 Ky. 476, 152 S. W. 243, it was held that the court could vacate an unjust and unconscionable default judgment against one who was insane at the time of its rendition, and in such a condition as to prevent him from appearing and making defense, and not represented by a guardian ad litem, under a provision of the statute authorizing the court in which a judgment had been rendered to vacate it for erroneous proceedings, against a person under disability, if the condition of such defendant did not appear in the record, or the error in the proceedings, or for unavoidable casualty or misfortune preventing the party from appearing or defending.

It was held in Hawley v. Griffin (1903) 121 Iowa, 667, 92 N. W. 113, 97 N. W. 86, that a default judgment taken against an insane defendant in an action in which he was not represented by a guardian, where his insanity is not brought to the attention of the court, and does not appear in the rec ord, may be vacated by his heirs, under a statute providing for the vacation of judgments erroneously entered against a person of unsound mind.

And in Litchfield's Appeal (1859) 28 Conn. 127, 73 Am. Dec. 662, where it appeared that a default judgment was rendered against an insane person, without the appointment of a guardian, or the appearance of anyone in the action in his behalf, and the judgment was presented after the death of such insane person as a claim against his estate, the rejection of such claim by the commissioners of his estate was sustained upon appeal, on the ground that the judgment could not equitably be enforced against his estate.

But the fact that one, when a default judgment was rendered against him, was of unsound mind, is not of itself sufficient to vacate the judgment. Woods v. Brown (1884) 93 Ind. 164, 47 Am. Rep. 369.