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Jensen v. McPherson11/13/2002
now known as Eri Jensen, a minor." Later he is referred to as "the infant," "such infant," "said child," "such child" and "said minor." Finally, the complaint contains scattered references to Erik as "said minor Plaintiff," even though he was never named as such in the caption or in the general allegations identifying the parties. Even with notice pleading, the complaint itself must properly identify the party as a plaintiff, must identify the party's claims and must identify the party's specific request for relief. Upon our review of the 1997 Summons and Complaint, Erik was never a party-plaintiff in the action; thus, the 2001 action-where Erik was properly pled as a party-is not duplicative.
. Second, assuming Erik was a party-and we hold that he was not-we conclude that Wis. Stat. § 803.01(3)(a) requires that a minor who is a party must appear by a guardian of the minor's property or guardian ad litem. Both sides acknowledge the import of § 803.01. It is, in fact, the controlling statute for the determination of whether Erik-assuming arguendo that he was a party in the 1997 action-appeared with proper representation. Section 803.01(3)(a) provides:
Parties plaintiff and defendant; capacity.
....
(3) Infants or incompetent persons. (a) Appearance by guardian or guardian ad litem. If a party to an action or proceeding is a minor, or if the court has reason to believe that a party is mentally incompetent to have charge of the party's affairs, the party shall appear by an attorney, by the general guardian of the party's property who may appear by attorney or by a guardian ad litem who may appear by an attorney. A guardian ad litem shall be appointed in all cases where the minor or incompetent has no general guardian of property, or where the general guardian fails to appear and act on behalf of the ward or incompetent, or where the interest of the minor or incompetent is adverse to that of the general guardian. Except as provided in s. 807.10, if the general guardian does appear and act and the interests of the general guardian are not adverse to the minor or incompetent, a guardian ad litem shall not be appointed. Except as provided in s. 879.23(4), where the interests of the minor or mentally incompetent person are represented by an attorney of record the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem. (Emphasis added.)
. In short, Wis. Stat. § 803.01(3)(a) requires that, in all cases, a minor who is a party to an action must have a "guardian"-be it a "general guardian" of the property or "guardian ad litem." We note that in both situations the court can carefully control the representations of the minor. The mandate that a minor must have either a guardian ad litem or a general guardian of the property is clear because the statute states: "A guardian ad litem shall be appointed in all cases where the minor or incompetent has no general guardian of property ...." Id.
. This established, it is undisputed that Erik did not have the services of a guardian ad litem until 2001, at which time Urban was temporarily appointed until the May 2001 appointment of Stierman. Thus, the only remaining question is whether Erik had a "general guardian of the party's property" as contemplated by Wis. Stat. § 803.01(3)(a).
. We must determine what our legislature meant by "guardian" under this statute and then apply that to the case at bar. This term is not defined in the chapter. When a term is not defined in the chapter, we may look for guidance in other chapters. See Town of Lafayette v. City of Chippewa Falls, 70 Wis. 2d 610, 619, 235 N.W.2d 435 (1975). "The guardian is the creatu
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