| Ill. | Jun 21, 1882
delivered the opinion of the Court:
In the view we take of this case we do not deem it important to' inquire which of the two bills, that filed by Galloway, or the one in the present case, is best adapted to the conservation of the infant’s interests and rights. Perhaps either of them is amply sufficient for that purpose. The chief object of the bill in the present case seems to have been to obtain a decree declaring the Pullman deed void, and to have the complainant’s rights declared accordingly • - while the bill filed by Galloway, as guardian, assuming the, deed to be valid, seeks a construction of it, and a declaration of the complainant’s rights under it. Under the latter bill, if the court shall find, as is claimed by appellant, the Pullman deed void, it will be its duty, and it will, doubtless, so hold and declare the complainant’s rights accordingly. As the object of a bill to com strue a written instrument of any kind necessarily involves a determination of its validity, we are of opinion the chief object of the present bill was attainable under the bill of the guardian, for, to construe a deed or other instrument is nothing more than declaring its legal effect, and if it is void, and consequently wholly inoperative, the court would be bound to so declare.
But as before indicated, the decision of this case does not depend altogether upon the comparative merits of the two bills. In our opinion the real question presented for our determination is, did the circuit court of Cook county, in dismissing the bill, under the circumstances disclosed, so abuse the discretion with which the law has clothed it in cases of this character, as to require a reversal of the decree ? Ordinarily the guardian is the proper person to represent bis ward in all legal proceedings, and he should do so unless some good reason appears to the contrary, of which the court in which the proceeding is instituted, or proposed to be instituted, is to judge, and this is particularly so with respect to the bringing of suits. The 18th section of chapter 64, Rev. Stat., provides, the guardian “shall appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian or next friend; but nothing contained in this'act shall impair or affect the power of any court or justice of the peace to appoint a guardian to defend the interest of a minor impleaded in such court, or interested in a suit or matter therein pending, nor their power to appoint or allow any person, as next friend for a minor, to commence, prosecute or defend any suit in his behalf. ” This provision of the statute is but declaratory of the law as it existed before. The language of the act is, “appoint or allow any person as next friend,” etc., thus clearly showing the court is clothed with a discretion in appointing or allowing one other than the guardian to institute or defend a suit on behalf of an infant. The necessity for this discretionary power on the part of the court is manifest. Without it any indefinite number of persons might bring suits on behalf of an infant, and all relating to the same subject matter; and as infants, when properly in court, are, like adults, bound by decrees and judgments rendered against them, it is altogether important that none but suitable persons should be permitted to institute or defend suits on their behalf. There should clearly be no conflicting interests between the infant and the party representing him.
In the present case it is not denied that the appellant, in the suit commenced by the guardian, set up an adverse claim in his own right to the property of the ward. It is true the decree upon the cross-bill is a bar to that claim so long as it remains in force, but the time for the prosecution of a writ of error is not passed, and moreover, the .very fact of his having interposed an adverse claim to the. property of his own child, which it is conceded it inherited from its mother, does not afford very persuasive evidence of his fitness to represent the child in a controversy about the same property, at least so long as there is any possibility of renewing his own claim. In the face of these facts, without any permission on the part of the court, he files the present bill on behalf of the child, by which he seeks to re-litigate, in the same court, the same matters which-were passed upon in disposing of the cross-bill in the other suit, and also other matters which can be fully considered and disposed of on the hearing of the original bill in that suit, which is still pending. Under these circumstances we are unable to say the court below did not properly exercise its discretion in dismissing the bill. It is only when this court is able to say there has been an abuse of such discretion, that it will interpose.
The judgment of the circuit court is affirmed.
Judgment affirmed.