Rowland v. Jones

62 Ala. 322 | Ala. | 1878

BRICKELL, C. J.

A decree in equity against infant defendants, necessary parties, having rights and interests materially affected by the decree, can not be supported when assailed on error, unless tbe record affirmatively shows that they have been brought before the court in the mode prescribed by tbe rules of practice, and tbe regular appointment of a guardian ad litem to represent and defend for tbem. These may, as in the present case, be an appearance for them, and an answer by a guardian ad litem recognized by the court. But if he comes in without tbe appointment of tbe court, or under an irregular appointment, or an appointment premature, because the court bas not, in the mode prescribed by law, by service of process if the infant is a resident of the State, or, if a non-resident, by publication, acquired jurisdiction of the person, the decree can not be sustained.

The bill avers that Howell F. and Lucy C. Erwin, material defendants, heirs-at-law, and next of kin of Hezekiah F. Erwin, deceased, were infants over the age of fourteen years, and residents of the State of Georgia. An order of publication as to tbem was made by tbe register, on proper evidence of their infancy and non-residence. But if this order was regularly perfected, it is not shown by the record. Without evidence that it had been perfected, the register proceeded to the appointment of a guardian ad litem, who accepted the appointment and appeared and answered. The appointment was irregular and premature, and compels a reversal of the decree. — 1 Brick. Dig. 761, §§ 1819-20; 762, §§ 1823, 1828, 1829.

As this will render it necessary to retake the testimony in the cause, and as we can not know what testimony may hereafter be introduced, it would be a departure from the practice of the court to express an opinion upon the merits of the case.

Reversed and remanded.