76 Ala. 368 | Ala. | 1884
— Williamson Glass, as guardian of William B. and Samuel G. Glass, came to a settlement of his said
William B. Glass filed the present bill, in which he alleges that Samuel G. Glass has died during his minority, leaving no debts, and leaving the said Williatn B., his bi’other, his only next of kin, and, as such, successor to his interests in the estate. The bill further alleges, that the said Williamson Glass inado no payment to the said Reeves, and that the said entry of satisfaction was the 2’esult of a fraudulent combination between the said Williamso2i and said Reeves. There was a demurrer to the bill, assigning, among other grounds, that complainant had an adequate remedy at law. The chancellor overruled the demurrer, and from that ruling the present appeal is prosecuted.
If this case is to rest alone on the attempt it makes to have the order of satisfaction vacated, we think the cotnplainant had an adequate remedy at law. All courts possess the inherent power to vacate, within a reasonable time, any order they may have tnade, which is on its face void, or so grossly irregular as not to reach the ends which the record shows were aimed at. Such correction is made, on motion, in the court where the judgment is rendered: and there should be notice of such motion, unless the judgment or order is void oti its face. 2 Brick. Dig. 140, § 137; Pitt v. Davison, 37 Barb. 97; Critchfield v. Porter, 3 Ohio, 518; Huntington v. Finch, 3 Ohio St. 445 ; Reynolds v. Stansbury, 20 Ohio St. 344 ; Newland v. Gentry, 18 B. Monroe, 666 ; Stacker v. Cooper Cir. Ct., 25 Mo. 401; Morgan Harbor v. Pac. R. R. Co., 32 Mo.
Reeves, the guardian ad litem, is described in the judgment-entry of the Probate Court, as the attorney in fact of the infant wards. Infants, or minors, can not have an attorney in fact. A power of attorney made by an infant is absolutely void. — Ware v. Cartledge, 24 Ala. 622 ; Philpot v. Bingham, 55 Ala. 435 ; Tyler on Infancy, 46-7. Reeves could not be the attorney in fact of the infants ; nor, indeed, was he their appointed attorney in any sense. Guardians ad litem may employ attorneys, if the interests of the trust require; but neither such attorney, nor the guardian ad litem, has authority to receipt for, or satisfy the judgment that may be recovered for a minor represented by them. Possibly, the entry of satisfaction may be treated as a nullity, and execution sued out, notwithstanding such entry. For regularity’s sake, however, it would be better and more seemly, to have the order vacated, and possiblv a revivor, before execution is sued out. — Code of 1876, § 3174.
There is another aspect to the question this record develops. When Williamson Glass attempted to settle his guardianship, the wards were under age. He had no authority to settle with them during their minority, nor to take any steps looking to a settlement, until he first dissolved the trust connection by resigning his guardianship. A settlement, made or instituted before such resignation, is without the jurisdiction of the Probate Court, and is void. — Lee v. Lee, 67 Ala. 406. The record in this cause does not positively show when the resignation was filed with the judge of probate. If after steps had been taken looking to a settlement, then what was done in the Probate Court was a nullity, and the trust remains for settlement, precisely as if no attempt thereto had been made. If the facts be thus, then the guardian can be brought to a settlement, either in the Probate or Chancery Court, at the option of the ward. If the resignation preceded all steps taken in the settlement, then complainant’s redress is solely in the Probate Court.
We have scanned the bill in this case with care, with a view of determining whether it can be so amended, as to make it a bill to bring Williamson Glass, guardian, to a settlement of his guardianship. We are satisfied that such alteration would work such a radical change, both in the averments and in the relief prayed, that it can not be allowed. — Lehman v. Meyer, 67 Ala. 396; Jones v. Reese, 65 Ala. 134; Scott v. Ware, 64 Ala. 174.
The present bill contains no equity, and the demurrer to it