| Ala. | Jun 15, 1854
It may be conceded that, under our decisions, there was no service against the infant defendant in the suit to foreclose (Hallett v. Walker, 1 Ala. 379" court="Ala." date_filed="1840-06-15" href="https://app.midpage.ai/document/walker-v-hallett-6501308?utm_source=webapp" opinion_id="6501308">1 Ala. 379; Johnson v. Hainesworth, 6 Ala. R. 443; Hodges v. Wise, 16 Ala.); and it is also clear, upon the authorities cited, that the appointment of a guardian ad litem, when service might have been, but was not, perfected upon the infant, is an irregularity which is fatal on error. But we do not understand these cases to go any further, although it is said in Hodges v. Wise, supra, that as the infant defendants were not before the court, the appointment of a guardian ad litem for them was nugatory. The question, however, there, was not whether the appointment was void, but whether it was an irregularity for
The Chancery Court is the general guardian of all infants within its jurisdiction, and by virtue of its general powers has authority to protect their rights, when defendants in that court, by the appointment of a guardian ad litem ; and it is proper that the chancellor, in making the selection of the guardian, should hear the nearest relative or protector of the infant, if under the age of fourteen, or the infant himself if over that age. Eor this reason, if the infant is not brought into court by service before the appointment is made, we hold it to be an irregularity sufficient to reverse the decree on error ; but we have found no case, which goes to the length of denying to the chancellor the power of making the appointment without service. The authority to do so results, as we have said, from the general powers which belong to the Chancery Court, and maybe exercised whenever the fact of infancy is established and the infant is within the jurisdiction of the court. — Banta v. Calhoun, 2 A. K. Marsh. 166; Bustard v. Gates, 4 Dana 429" court="Ky. Ct. App." date_filed="1836-10-11" href="https://app.midpage.ai/document/bustard-v-gates-7380277?utm_source=webapp" opinion_id="7380277">4 Dana 429; 8 B. Mon. 102" court="Ky. Ct. App." date_filed="1847-12-20" href="https://app.midpage.ai/document/benningfield-v-reed--sutherland-7128962?utm_source=webapp" opinion_id="7128962">8 B. Mon. 102; Caldwell v. Boyer, 8 Gill & J., 136; 15 Ohio 689. The improper exercise of this authority may be reviewed on error, but the act is not void, and the decree rendered could not, therefore, be attacked collaterally for the want of jurisdiction.
2. It is urged on the part of the appellant, that the decree was void, for the reason that the infant was not named in it, nor in the previous proceedings. We do not think the position can be sustained. It is true that parties are of the essence of every suit, and at equity as well as law, those who are complainants and defendants should be clearly presented as such; but equity disregards form, and looks to the substance, more than courts of law. In the bill of revivor, the appellant is designated as the only infant son of Simon T. Preston, his name being unknown ; and the pleadings in the present suit do not deny that the complainant in that suit was the person against whom the bill of revivor was exhibited.— There is, it is true," a general allegation, that he was not made a party to the bill of revivor ; but his own bill shows that he was the posthumous child of Simon T. Preston, and his sole
Decree affirmed ; the appellant to pay the costs of this court.