43 So. 807 | Ala. | 1907
Perryman & Co. brought their bill in the chancery court of Jefferson county against AAr. W. Montgomery, a non compus mentis, praying'the correction of descriptions in certain conveyances. In regular course of proceedings a guardian ad litem was
The petition, to which the decree in a measure? responds, if its presence in the cause may he justified al all, which wo do not decide, instituted a proceeding adverse. to the non compus mentis and his estate; and that by the same person to whom the court had committed the protection in the case of the rights and interest of the ward. Clearly, the petitioner could not press his oto alleged right to compensation for his services in the premises and at the same time appear in behalf of the ward. Furthermore, it is not allowable in this state to proceed to judgment or decree affecting the person or estate of a non compus mentis or an infant, unless he is represented in the. proceeding by guardian ad litem appointed.-—Hibbler v. Sprowl, 71 Ala. 50; Griffith v. Ventress, 91 Ala. 366, 8 South. 312, 11 L. R. A. 193, 24 Am. St. Rep. 918; Woods v. Montevallo Co., 107 Ala. 364, 18 South. 108. This respondent was not so represented in the proceeding begun by the petition, an.d tin? decree in that respect cannot be sustained.
As to the other phase of the decree, we are of the opinion, and so hold, that the refusal of the chancellor to tax the sum found, as reasonable compensation for
It seems to have been held by highly respectable courts and announced by eminent text-writers that in many respects a prochein ami and a guardian ad litem are officers of court, appointed to enforce, preserve, and protect the rights and interests of persons under disability.—Sharp v. Findley, 59 Ga. 729; Story, Eq. PI. §§ 57, 70; 10 Ency. Pl. & Pr. p. 616, and notes. But we are unable to see. liow this status of the representative of the ward can afford any ground for the imposition on an unsuccessful litigant of his compensation for services rendered, for the all-sufficient reason that such compensation is not cost under our statutes. That the ward’s estate, in a proper forum and proceeding, is liable to the. guardian ad litem for his reasonable compensation, we apprehend there can be no doubt. Whether that compensation shall include his services as attorney or solicitor is doubtless another question.
The decree is corrected, so as to eliminate from it the confirmation of the report of the. register and its judgment against the estate of Montgomery in favor of the guardian ad litem as such, or individually, and, as thus
Corrected and affirmed.