66

had been appointed without service of process on the infant."5 It is said that the decisions are uniform that a decree rendered against a minor, where no guardian ad litem has been appointed to defend for the minor, is not void, but voidable. Application for such appointment may be made by the infant in some jurisdictions, if he is above a given age, or by some disinterested relative or friend. If no such application is made, as a general rule the complainant may apply to the court to appoint a suitable person as guardian ad litem of such infant.67 The court will not permit an adverse party to select the guardian.68 The court may of its own motion appoint a guardian ad litem.“ Notice should be given to the minor and his next of kin of the application for the appointment of a guardian ad litem.70 The

65 Manson v. Duncanson, 166 U. S. 533; New York Life Ins. Co. v. Bangs, 103 U. S. 435; Preston v. Dunn, 25 Ala. 507; Gronfier v. Puymirol, 19 Cal. 629; Robb v. Irwin's Lessee, 15 Ohio, 689. In an action in a federal court in the nature of a suit in rem, seeking to subject certain property, in which an infant is interested, to the payment of partnership debts, the appointment of a guardian ad litem for such Infant, upon application of the mother, is sufficient to give the court Jurisdiction without actual service upon the infant. Sloane v. Martin, 145 N. Y. 524, 40 N. E. 217. See, also, Mohr v. Manierre, 101 U. S. 422; Ingersoll v. Mangam, 84 N. Y. 622; Gotendorf v. Goldschmidt, 83 N. Y. 110.

66 Millard v. Marmon, 116 Ill. 649, 7 N. E. 468; Trapnall's Adm'x v. Bank, 18 Ark. 63; Townsend v. Cox, 45 Mo. 401; Blake v. Douglass, 27 Ind. 416; Peak v. Shasted, 21 Ill. 137, 74 Am. Dec. 83; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291; Roberts' Widow & Heirs v. Stanton, 2 Munf. (Va.) 129.

671 Barbour, Ch. Pr. 84, 85. For cases considering appointment on motion of complainant, see Ralston v. Lahee, 8 Iowa, 17, 74 Am. Dec. 291; Clarke v. Gilmanton, 12 N. H. 515; Bullard v. Spoor, 2 Cow. (N. Y.) 430. For cases involving rights of persons other than complainant and infant, see Grant v. Van Schoonhoven, 9 Paige (N. Y.) 255, 37 Am. Dec. 393.

68 Knickerbacker v. De Freest, 2 Paige (N. Y.) 304; Rhoads v. Rhoads, 43 Ill. 239.

Rhoads v. Rhoads, 43 Ill. 239.

To Nelson v. Moon, 3 McLean, 319, Fed. Cas. No. 10,111; O'Hara v. MacConnell, 93 U. S. 152. See Frierson v. Travis, 39 Ala. 150.

consent of the minor is not necessary,71 but it is held that infant defendants above fourteen years of age should be consulted, if not attended with too much trouble and expense, as to which the chancellor must exercise a sound discretion.72 Where a special answer is advisable or necessary to bring the rights of the infant properly before the court, the guardian ad litem should put in such answer.73 The guardian ad litem and his counsel may exercise a discretion in declining to take, or taking, proceedings in the cause, where they are satisfied it is a clear case against the infant.74 Under the practice in most jurisdictions, in ordinary cases the guardian ad litem employs a solicitor to enter the appearance of the infant, and to defend the suit for him. Where a solicitor is appointed guardian, it is usual for him to enter the appearance himself with the clerk.75

§ 178. Consent of guardian ad litem to act.

A guardian ad litem must consent to act for the ward. This consent may be express, or implied from his conduct in the

$179. Order of appointment.

The appointment should be by order of court.77

When an

71 Beddinger v. Smith (Ark.) 13 S. W. 734; Banta's Heirs v. Calhoon,

2 A. K. Marsh. (Ky.) 166.

72 Walker v. Hallett, 1 Ala. 379.

731 Barbour, Ch. Pr. 85; Knickerbacker v. De Freest, 2 Paige (N. Y.) 304.

74 Levy v. Levy, 3 Madd. 245; 1 Barbour, Ch. Pr. 85 751 Barbour, Ch. Pr. 86.

70 Greenup's Representatives v. Bacon's Ex'rs, 1 T. B. Mon. (Ky.) 108; Creech v. Creech, 10 Mo. App. 586. See Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291; Daniel v. Hannagan, 5 J. J. Marsh. (Ky.) 49. It was the practice of the New York court of chancery to appoint no one to act as guardian ad litem without his written consent. McVickar v. Constable, Hopk. Ch. (N. Y.) 102. And a reasonable time will be allowed him to consider whether he will accept. Wells' Heirs v. Winfree, 2 Munf. (Va.) 342. In Alabama it is held that the record of his appointment for infant distributees must show his acceptance of the trust. Jenkins' Distributees v. Jenkins' Adm'r, 16 Ala. 693.

77 Madison's Heirs v. Wallace's Ex'rs, 2 J. J. Marsh. (Ky.) 581.

answer is filed for infant defendants by one purporting to be their guardian ad litem, and the decree recites that he was so appointed, but the record shows no formal order of appointment, it will be presumed that the appointment was regularly made.78 If the record simply recites the appointment "on motion," without specifying on whose motion, and no other notice appears to have been given to the infants concerned, it is held that the court will presume that they were present in court at the time. of the motion.79 It is not essential to the validity of an order appointing "the clerk of the court" guardian ad litem that he be designated by name.80 An order appointing a guardian ad litem for the "minor heirs of" a deceased person, not naming them, is a nullity.81

$ 180. Form of petition for appointment of guardian ad litem. [Title of court and cause.]

To the Honorable the Judges of the Circuit Court of

Chancery Sitting:

County, in

Your petitioner, X. Y., respectfully represents that he is the complainant in the above-entitled cause; that the defendant, A. B., is a male infant or minor under the age of twenty-one years; that a sum mons duly issued out of this court on the

-, returnable to the

rected to the sheriff of

day of

A. D.

di

term of this court, A. D. county, commanding him that he sum

mon the said defendant, A. B., and that said summons was duly served by the sheriff of county on the said A. B. by delivering a true

day of —, A. D. —

being

copy thereof to him on the more than days before the return day thereof; that said defendant, A. B., has not appeared in this cause; that no guardian ad litem has been appointed for said A. B., and no application for the appointment of a guardian ad litem has been made by or on behalf of said infant; and that said A. B. resides with his father, J. B., at the city of

Your petitioner therefore prays that some fit and suitable person may

18 Tibbs v. Allen, 27 Ill. 119. See, also, Stevenson v. Kurtz, 98 Mich. 493, 57 N. W. 580; Sargeant v. State Bank of Indiana, 12 How. (U. S.) 371. But see McDonald v. McDonald, 3 W. Va. 676.

79 Horner v. Doe, 1 Ind. 130, 48 Am. Dec. 355; Thompson v. Doe, 8 Blackf. (Ind.) 336.

80 Hess v. Voss, 52 Ill. 472.

81 Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291.

be appointed by the court as guardian ad litem of said defendant, A. B., In this suit, to appear and defend the said suit for the said A. B.

J. G.,

X. Y., Petitioner.

Solicitor for Petitioner.

[Conclude with verification as in bill.]

181. Form of order appointing guardian ad litem.

[Title of court and cause.]

directed to the sheriff of

term county,

On reading and filing the petition of the complainant for the appointment of a guardian ad litem for the defendant, A. B., and it ap-, pearing to the court that a summons duly issued out of this court on the day of A. D., returnable to the of this court, A. D. commanding him that he summon the defendant, A. B., and that said summons was duly served by the sheriff of county on the said A. B. by delivering a true copy thereof to him on the day of , A. D. —, being more than days before the return day thereof, and it further appearing to the court that the said defendant, A. B., is a male infant or minor under the age of twenty-one years; that said A. B. has not appeared in this cause; that no guardian ad litem has been appointed for said A. B., and no application for the appointment of a guardian ad litem has been made by or on behalf of said A. B.; and that the said A. B. and his father, J. B., have been duly served with a copy of said petition, and have had due notice of this motion; and that E. R. has consented to act as guardian ad litem of said A. B.: On motion of complainant's solicitor,

It is ordered that E. R., a solicitor of this court, and a fit and suitable person, be, and he is hereby, appointed guardian ad litem of said defendant, A. B., in this suit, and is authorized to appear and defend the said suit for the said A. B. as said guardian ad litem.

182. Appearance by persons non compos mentis.

An idiot or lunatic, when made a defendant to a suit, must appear and defend by the committee of his estate, if one has been appointed. In cases where there is a committee, he generally applies by motion or petition to be appointed guardian to appear and defend.82 If the idiot or lunatic has no committee, or the committee has an interest opposite to that of the

821 Barbour, Ch. Pr. 86; Westcomb v. Westcomb, 1 Dickens, 233; Snell v. Hyat, 1 Dickens, 287; Carew v. Johnston, 2 Schoales & L. 293; Lee v. Ryder, 6 Madd. 294.

idiot or lunatic, an order may be obtained appointing another person as guardian for the purpose of defending the suit against him.88 It is said that, if the bill states him to be a lunatic, it is a motion of course to apply for the appointment of a guardian ad litem; if it does not do so, the motion must be supported by affidavit or other evidence.84 The application for the appointment of a guardian to appear and answer for the defendant may in some cases be made by the complainant.85 A practice similar to that of appointing a guardian for a person non compos mentis is pursued in cases where the defendant is so infirm in body and mind as to be incapable of putting in an answer, or where he is deaf and dumb.88 It is held that where the defendant has a committee, and he refuses to appear, application should be made that he appear in a limited time, or that a new committee be appointed.87 The application for the appointment of a guardian ad litem, whether made by the complainant or by some person on behalf of the defendant, may be either by petition or by motion, supported by an affidavit of the facts. If made by the complainant, it is said to be the proper practice to give notice to the relatives of the defendant, or the person with whom he resides, 88

831 Barbour, Ch. Pr. 86.

841 Barbour, Ch. Pr. 86; 1 Fowler, Exch. Pr. 477.

85 1 Barbour, Ch. Pr. 86.

se 1 Barbour, Ch. Pr. 87; Wilson v. Grace, 14 Ves. 172; Markle v. Markle, 4 Johns. Ch. (N. Y.) 168; Gason v. Garnier, 1 Dickens, 286; 1 Hoffman, Ch. Pr. 177.

871 Barbour, Ch. Pr. 86; Lloyd v.

1 Barbour, Ch. Pr. 87; 1 Hoffman, Ch. Pr. 177.

2 Dickens, 460.

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