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Jensen v. McPherson11/13/2002
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a. The minor or mentally incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or
b. The personal representative of such minor or mentally incompetent at any time prior to the expiration of one year after the death of the minor or mentally incompetent.
. Lastly, we are not moved by McPherson's public policy argument. We agree with Erik that Judge Kennedy's careful reasoning supports this holding as sound.
The problem the court has is-and I don't think I'd fault anybody on it the way this case went, except perhaps, and I say this with caution, a certain prior attorney who was on the plaintiff's side. He never did get a guardian ad litem appointed for the child or participating.
Of course the defense counsels never noted that either, and the question is did they have to. And my opinion is, yeah. I don't blame them for doing what they did, but they really didn't-they did sort of have to, because that child was a necessary party, and the child really wasn't participating.
If Judge Gibbs had known that there was a party out there who was a necessary party who was not being allowed to participate, in effect something had been done wrong, there is no way he could have entered his initial ruling that limited what was supposed to happen in the older file.
I know what Judge Gibbs didn't know, and that is that we didn't have the child having a guardian ad litem participating effectively in his own right.
. In conclusion, we affirm the circuit court's decision to deny McPherson's motion to dismiss; we affirm the circuit court's granting of Erik's motion to consolidate the 1997 and 2001 actions and uphold the circuit court's discretionary decision to set a new scheduling order. Erik was not a party in the 1997 action and even if he were, he was not properly represented as is mandated under Wis. Stat. ยง 803.01(3)(a). We believe that the legislature has wisely directed that a guardian ad litem be appointed for a minor who does not have a general guardian of the property. This is a desirable way of assuring that in every case the minor's rights will be fully protected. This is true even though there is an attorney who has been chosen by the parents to assist in the processing of the child's claim. While in the great bulk of cases the minor's interests and the parents' interests fully coincide, there will be some cases where the minor's rights can better be protected by an officer whose interests do not extend beyond the minor and the court. See Andresen, By Guardian Ad Litem v. Mut. Serv. Cas. Ins. Co., 17 Wis. 2d 380, 383, 117 N.W.2d 360 (1962).
By the Court. -- Order affirmed.
Recommended for publication in the official reports.
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