McClure v. Farthing

51 Mo. 109 | Mo. | 1872

Bliss, Judge,

delivered the opinion of the court.

Some of the defendants in this cause were minors and answered by guardian ad litem, and during its pendency the attorneys for the plaintiff and for the other defendants, made an agreement in writing stipulating that “a final decree should be entered in the cause for the plaintiff upon the trial and evidence adduced in the other cause tried by the court, in which a decree was entered for plaintiff; the evidence and points of controversy upon the title being substantially similar.” It was farther stipulated that if the former decree should be reversed, that rendered in this cause should be set aside. A general judgment was rendered upon this agreement, against all the defendants, and afterwards the guardian ad litem, of the minors presented his motion to set it aside, as having been unauthorized by him and unwarranted by law, even had he given his consent, but the motion was overruled.

A guardian ad litem has but one duty, and that is to defend the action. Revely vs. Skinner, 33 Mo., 98. It is un necessary to say that when there are several actions pending between the same parties, involving precisely the same facts, the guardian may not agree to submit the whole upon a single examination of witnesses, or, which is in effect the same thing, that the decision of one shall decide the whole. Such an agreement may be consistent with his duty, but that is not this case.

The record shows that the agreement was made »by the attorneys of the other parties, who did not and could not represent the minors, and that it was made after the trial of the other cause, a cause not shown to have involved the same issues and evidence, but only evidence and points substantially similar.

The motion should have been sustained, and the judgment overruling it is reversed and the cause remanded.

The other judges concur.