205 Mass. 113 | Mass. | 1910
The petitioner has mistaken his remedy. No citation of authorities is needed in support of the propositions, first, that a court may, and indeed should, appoint a guardian ad litem for a litigant in a case before it whenever by reason of minority or mental unsoundness one is required; and second, that whenever the question arises as to whether such a guardian is required the court has jurisdiction to consider and decide it. And this jurisdiction is not founded upon a previous notice to the litigant, but is a part of and incidental to its general jurisdiction over the case and the parties properly before the court. Denny v. Denny, 8 Allen, 311. If in the exercise of this jurisdiction the proceedings of the court are irregular or informal for want of a previous notice to the litigant to appear and show cause why such a guardian should not be appointed, or for any other cause, the remedy for the correction of any such error is not by a writ of prohibition but by appeal or exception, or in some cases by writ of certiorari. Prohibition lies not to correct errors of a tribunal acting within its jurisdiction, but to restrain it from acting in matters outside of its jurisdiction. “ The writ
It becomes unnecessary to consider the other grounds of defense to the petition. The petition was rightly dismissed.
Exceptions overruled.
