Brown v. RipleyBrown v. Ripley
Defendant in a bastardy proceeding has appealed from a final decree adjudging him to be the natural father of a male child born of the plaintiff, and ordering that he pay certain specified amounts for medical expenses, support for the child, attorney‘s fees and court costs.
Appellant contends that the decree is void and should be reversed for the reason that the chancellor failed to appoint a guardian ad litem to represent the minor defendant in this proceeding.
Our attention is invited to
Prior to the adoption of our present rules of civil procedure, it was held by our Supreme Court that the failure of a trial judge to appoint a guardian ad litem to represent a minor defendant was fatal to the court‘s jurisdiction, and any judgment or decree rendered against an infant in such circumstances was void. Gissen v. Goodwill, Fla. 1954, 74 So.2d 86. Under another line of decisions rendered by the Supreme Court prior to the present rules of civil procedure it was held that the failure to appoint a guardian ad litem to represent an infant defendant was an error in procedure only, subject to reversal on appeal or amenable to direct attack, but such error did not render the judgment void or subject to collateral attack. Polk v. Chase National Co., 120 Fla. 243, 162 So. 521; Quigley v. Cremin, 94 Fla. 104, 113 So. 892; McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A.L.R. 731. The latter authorities are in harmony with our disposition of this appeal.
The statute with respect to the requirement that a guardian ad litem be appointed in every case to represent the interest of a minor defendant has now been superseded by
“Whenever an infant or incompetent person has a representative, such as a guardian, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”
Section 25.371 provides that when a rule is adopted by the Supreme Court concerning practice and procedure and such rule conflicts with a statute, the rule supersedes the statutory provision.
The above quoted rule was interpreted by the Supreme Court in Savage v. Rowell Distributing Corp., Fla. 1957, 95 So.2d 415. It was there held that this rule was patterned after and is almost identical with
In the case before us the record fails to reveal any motion or suggestion for the appointment of a guardian ad litem nor does it contain any order directly passing upon the question here presented. Ordinarily questions of procedure will not be considered by an appellate court if raised for the first time on appeal. Lee County Oil Co. v. Marshall, Fla.App. 1957, 98 So.2d 510; Mariani v. Schleman, Fla. 1957, 94 So.2d 829. Furthermore, the failure to appoint a guardian ad litem was not assigned as error on appeal, but is first injected into the case by way of appellant‘s brief. Alleged error not fundamental in character will not be considered on appeal unless properly assigned. Bowden v. Carter, Fla. 1953, 65 So.2d 871. However, we do consider the error here involved to be fundamental in character, infecting the validity of the judgment and rendering it voidable, and therefore do not hesitate to review it and take appropriate action.
From the record before us it affirmatively appears that the complaint alleged and the answer admitted that defendant was nineteen years of age. The answer, filed in the name of a minor defendant only, is sufficient in law to constitute a complete defense to the cause of action alleged in the complaint. The defendant and his father as natural guardian were properly served with process as required by statute. While it appears that the defendant‘s father was present during at least part of the proceedings, this fact does not remotely satisfy the rule. The minor was represented by able trial counsel who called to the witness stand nine witnesses whose testimony was adduced in support of the defense set up in the answer. Extensive testimony was taken during which paintiff‘s witnesses were vigorously and ably cross-examined. The testimony reveals that the minor defendant was not an immature school child, but was living away from home in pursuit of full-time employment at a salary of $150 a month in addition to his room and board. He was a habitue of poolrooms, “juke” halls and other places normally frequented by adults. These factors are irrelevant to and do not excuse compliance with the rule.
There is no indication in the record that the failure of the trial court to appoint a guardian ad litem to represent the minor defendant resulted in any prejudice to his rights, or in a miscarriage of justice. There is no contention by appellant that had a guardian ad litem been appointed, any defenses otherwise available would have been urged, or any proof different from that presented would have been adduced in support thereof. From the record it affirmatively appears that defendant was sufficiently mature to capably assist in the formulation, preparation and presentation of his defense on trial before the court. These factors are likewise impertinent to the inquiry concerning the rule.
The interpretation and application placed on the parallel federal rule in Roberts v. Ohio Casualty Insurance Co., 5 Cir., 1958, 256 F.2d 35, 39, accords with the fundamental purpose of our rule and should be followed in our courts:
“Rule 17(c) does not make the appointment of a guardian ad litem mandatory. If the court feels that the infant‘s interests are otherwise adequately represented and protected, a guardian ad litem need not be appointed. Westcott v. United States Fidelity & Guaranty Co., 4 Cir., 1946, 158 F.2d 20. But the rule does not mean that a trial judge may ignore or overlook such a fundamental requirement for the protection of infants. We spell out the rule to mean: (1) as a matter of proper procedure, the court should usually appoint a guardian ad litem; (2) but the Court may, after weighing all the circumstances, issue such order as will protect the minor in lieu of appointment of a guardian ad litem; (3) and may even decide that such appointment is unnecessary, though only after the Court has considered the matter and made a judicial determination that the infant is protected without a guardian. In Till v. Hartford Accident & Indemnity Co., 10 Cir., 1941, 124 F.2d 405, the Court found that a guardian ad litem was not necessary only because the infant was represented through a next friend, the alter ego of a guardian ad litem. In Zaro v. Strauss, 5 Cir., 1948, 167 F.2d 218, this Court held that an attorney‘s representation of an incompetent was insufficient to satisfy the requirements of Rule 17(c).” (Emphasis supplied.)
In the cited case, as here, the infant was represented by counsel and apparently no thought was given to the rule by the court or counsel for the infant during the trial. However, in that case the court pertinently observed:
“We believe that the discretion lodged in the trial judge in Rule 17(c) was not intended to apply to such a situation. The orderly administration of justice and the procedural protection of minors requires the trial judge to give due consideration to the propriety of an infant‘s representation by a guardian ad litem before he may dispense with the necessity of appointing the guardian.”
Appellant‘s counsel admitted on oral argument that he was not aware of the rule until he became engaged in the preparation of appellant‘s brief. In response counsel for appellee stated that during the course of the trial he was cognizant of the rule but felt the defendant minor was properly protected under all the circumstances and so did not bring the rule to the attention of the trial court. That extra-judicial determination of appellee‘s counsel is repugnant to the objective of the rule, and his failure to present the subject to the trial court only compounds the error.
As we have said, the erstwhile presence of appellant‘s father in the courtroom during part of the proceedings does not satisfy the rule. Considering the intricacies of the law, there would be more logic in holding that representation by able counsel is sufficient.
Former
We have alluded to some of the evidence in this case for the sole purpose of presenting the factual background upon which the appellee relies in support of the proposition that no material error resulted from the failure to appoint a guardian or enter an order protecting the interest of the minor as indicated to be necessary by the plain provisions of the rule. In view of our disposition of this appeal, that evidence will have no force or effect unless, upon compliance with our disposition, it is adopted by the parties for use by the trial court in further proceedings in this cause.
The judgment appealed is vacated and this cause is remanded with directions to proceed in accordance with the views expressed.
STURGIS, J., concurs.
WIGGINTON, Chief Judge, dissents.