Bondurant v. Sibley's Heirs

37 Ala. 565 | Ala. | 1861

A. J. WALKER, C. J.

[1-2.] The infant defendant mentioned in the amended bill, was not a party to the suit at the time the master was appointed to act as guardian ad litem for him. The bill of revivor, however, made Girarles ¡S. Perkins a party defendant. The want of appropriate allegations, showing his interest in the litigation, does not jjrevent him-from becoming a party by virtue of tbe prayer that be sliould answer, and the prayer for process against him. — Walker v. Bank of Mobile, 6 Ala. 452 ; Lucas v. Bank of Darien, 2 Stew. 280. Thus far, the bill of re-vivor was a bill of amendment; and the amendment thus brought forward, having been made without leave previously obtained, would have been stricken out on motion. 1 Dan. Ch. Pr. 468. But no such motion was made. Answers-were filed by the defendants, treating the amendment -as properly made; and there- was afterwards a long acquiescence in, and recognition of the amendment, both by the the parties, and by the court. Under these circumstances, we do not think that the amending feature of the bill of revivor, as it is denominated, ought to be regarded as not belonging to the record, notwithstanding it may not have- been made pursuant to a previous order; — Farmers' Loan & Trust Company v. Reid, 3 Edw. Ch. 414.

, [3-4.] As the infant-defendant mentioned in the amended bill was not a party to the suit at the time the-master was appointed to act as guardian ad-litem for him, that appointment was a .nullity ; and it seems to have been so treated by the chancellor. But, as Charles S. Perkins was made a party by the bill of revivor, the chancellor then had jurisdiction to appoint a guardian ad litem for him; and the appointment, even if made-without any previous service, and otherwise irregular, would not be void, but voidable merely. — Preston v. Dunn, 25 Ala. 507. The appointment of A. N. Perkins, at the June term, 1851, as the guardian ad litem of Charles $. Perkins, .ne matter-how irregular it may have been, was not void-; because the infant was a party to the suit when it was .made. It was, however, irregular ; and this court would, on account of the irregularity, have reversed a decree against the infant. The irregularity consisted alone in the fact, -which is shown both by the return on the -subpoena and by the order making the appointment,-that the subpoena-was served on the infant personally, who was at that time only three or four years of age. — 20th Rule of Chancery Practice, 24 Ala. V ; Clark v. Gilmer, 28 Ala. 265 ; Sanders v. Godley, 23 Ala. 473 ; Hodges v. Wise, 16 Ala. 509 ; Walker v. Bank of Mobile, 6 Ala. 452. The chancellor had, unquestionably, the power to vacate this irregular interlocutory order ; and it would have been his plain duty to do so, on the motion of the complainants. — 3 Dan. Ch. Pr. 1616, 1807 ; Walker v. Bank of Mobile, 6 Ala. 452.

The register’s appointment of Harrison, as the guardian ad litem of Charles S. Perkins, was clearly improper; because there was then an-.existing, appointment, which was. valid until set aside. Harrison’s appointment was strictly analogous to the appointment of a second administrator without revoking the appointment of the first. As the second appointment of an administrator would.be void, so also is the second appointment of a guardian ad litem in this case. If it were not so, there would be two separate and distinct guardianships at the same time. As Harrison’s appointment was void, the order of the chancellor setting it aside was correct.

[5-6.] The order setting aside the appointment of A. N. Perkins, as the guardian ad litem of Charles S. Perkins, was vacated on motion of the complainants’ solicitor; and' the solicitor seems from the record to have made the motion, because his client was dissatisfied with him for obtaining the vacation-, of the appointment. The appellants cannot complain of the action- of the chancellor in thus. setting aside the order vacating the appointment of. Perkins, although it may: have been improper, because it* was-, made at their instance,. It would have been improper: for the chancellor to grant- the complainants’' motion to.set' aside the order vacating the appointment of Harrison.. The order, setting aside the appointment of Perkins, which the complainants would .not permit to remain when it-had been made, and would not ask when it was suggested.;by the chancellor, was the only possible means by which the infant could be represented in court in.a regular manner. The complainants refused, not only to do what was necessary to prepare the cause for a hearing, but to permit the necessary order to remain when it had been made. There "was, therefore, a refusal on their part to ipróseCute the suit in a regular and legal manner; and we-think the chancellor had authority to dismiss it for want of prosecution, as he' did, on the defendants’ motion. Inátead of dismissing the bill, he undoubtedly might have removed the next friend of 'the infant complainants;; and ‘that would have been the more usual, and, ordinarily, the proper course. It is, however, a matter as to which'the chancellor must, we think, be allowed some latitude of discretion. We cannot presume that he acted ill disregard of the interests of the infant complainants. 0-n the contrary, we think it fair to .presume that he adopted the-course that he did, only upon a reasonable-conviction that the interests of the infants did not require a further prosecution of the suit. It is argued, however, for the appellants, that 'Sibley’s heirs were not necessary parties to the suit. But, if it were conceded that they were only proper, and not necessary parties ; it would be the duty of the complainants nevertheless, having made them parties to the bill, either to amend the bill, and omit them from it, or to proceed with proper diligence to bring them before the ’Court. The heirs, however, were clearly indispensable parties $ for thepbject of the bill was to divest them of a legal title which had descended to them. — Batre v. Auze, 5 Ala. 173 ; Erwin v. Ferguson, 5 Ala. 158; Kennedy v. Kennedy, 2 Ala. 573; Jennings v. Jenkins, 9 Ala. 286 ; 1 Dan. Ch. Pl. 241, 256.

The,decree-of the chancellor is affirmed.