53 Ga. 514 | Ga. | 1874
■ To say that the decree taken in 1889, is a void decree, simply because no formal order ivas taken making Mrs Nelson, the mother of these plaintiffs, their guardian ad litem, notwithstanding the whole proceeding was in good faith, is to pass a very harsh and technical judgment. It must be remembered that the litigation was commenced by a bill filed in the name of the minors, by Mr. and Mrs. Nelson, as their next friends, and on this bill an injunction was granted. Before any final action was taken on this bill, the executor filed a bill for direction, etc., asking that guardians ad litem, should be appointed for the minors, if the court should think it necessary. Service was acknowledged by Mrs. Nelson as the guar■dian of the children, appointed by the New York court, and the court made no formal appointment of a guardian ad litem. W e are not prepared to say that a decree taken against an infant, under such eircumstences, is ipso facto, void. By the chancery practice in England, an infant may be sued and, ordinarily, must be served. But it has been held that the service may be on the parent: Smith vs. Marshall, 2 Atk., 70. The appointment of a guardian ad litem is not necessary to give the court jurisdiction, to entertain the suit. As to infants, Mr. Daniel says: “There are individuals,
Judgment affirmed.