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legal representative after his death: Allen v. Roundtree, 1 Spear (8. C.), so.

The minority view holds that the next friend may receive the recovery, give a sufficient acquittance and satisfy the judgment: Baltimore etc. R. Co. v. Fitzpatrick, 36 Md, 619; O'Donnell v. Broad, 2 Pa. Dist. Rep. 84; and it may be paid to his regularly appointed attorney, but the right of the next friend or his attorney to receive the money is subordinate to that of the regular guardian: Baltimore etc. R. Co. v. Fitzpatrick, 36 Md. 619. See, also, Stroyd v. Traction Co., 15 Pa. Super. Co. 245.

In Cody v. Roane Iron Co. (Tenn.), 53 S. W. 1002, affirmed, 105 Tenn. 515, 58 S. W. 850, it is held that though a next friend bas no right to take the money paid him out of court, he may acknowledge satisfaction on the record; that the proper course is for the court to direct the money to be paid into court, for the purpose of being subsequently paid out to the regular guardian, or of being lent out under order of court for the benefit of the infant.

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IX. Power to Contract for Legal Services. Where it is for the infant's benefit that counsel be employed, the guardian ad litem or next friend may do so: Glass v. Glass, 76 Ala. 368; Baltimore etc. R. Co. v. Fitzpatrick, 36 Md. 619; Colgate v. Colgate, 23 N. J. Eg. 372. But seo In re Johnston, 6 Dem. Sur. (N. J.) 355, holding that a guardian ad litem in the surrogate's court will employ counsel at his own expense.

There is a conflict as to whether such guardian may enter into a contract for the services of an attorney. In Yourie v. Nelson, 1 Tenn. Ch. 614, it is held to be his duty to make a contract with counsel for professional services, or agree with him as to his compensation, and such expenses fall under the head of just allowances to which fiduciaries are entitled. Other cases take an opposite view, under which he cannot bind his ward by a contract for attorney's fees: Cole v. Superior Court, 63 Cal. 86, 49 Am. Rep. 78; Houck v. Birdwell, 28 Mo. App. 644. In the former of those cases it is said: “ The guardian ad litem is an officer of the court appointing him; his duties are to represent the infant, insane or incompetent person in the action or proceeding': Code Civ. Proc., sec. 372. He may, doubtless, employ an attorney to assist him in the prosecution or de fense of the action, but he may not make a contract for the pay. ment of compensation which shall absolutely bind the ward or his estate. . . . . His powers are certainly no greater than those of a general guardian. Like the latter he may be allowed a credit for moneys advanced or paid out of the fund collected, as reasonable compensation for the expenses, and for the services of an attorney. But he has no power by specific agreement with the attorney to fix

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such compensation absolutely. An attorney accepting employment, and rendering services under such circumstances, must rely upon the subsequent action of the court in ascertaining and adjusting proper compensation. He cannot determine the amount, nor can he retain what he or the guardian ad litem may deem a proper sum, leaving it to the general guardian to sue for the excess. There is no place here for the doctrine of an implied promise upon a quantum meruit. The presumption of a promise is rebutted by the fact that the guar. dian had no power to contract in such manner as to bind the assets of the ward except conditionally.”'

X. Power to Purchase at Sale of Infant's Property. The question has arisen as to how far a next friend or guardian ad litem is a trustee in such a sense as to be prohibited from purchasing the infant's property at a sale. The Kentucky courts hold that he is not such a trustee, and the rule does not apply: Mitchell v. Berry, 58 Ky. (1 Met.) 602. In Spencer v. Milliken, 4 Ky. Law Rep. 856, it was held that a sale was not void because a guardian ad litem was the purchaser, the infaut having been represented by a trustee who defended for him.

The decision of the other courts, however, consider a guardian ad litem as a trustee within the meaning of the rule, and will not uphold a purchase by him at a sale of the infant's property: Collins. v. Smith, 38 Tenn. (1 Head) 251; Starkey v. Hammer, 60 Tenn. (1 Baxt.) 438; Gallatian v. Cunningham, 8 Cow. 361; nor can he acquire the property of infant heirs pending a litigation in respect to it: Massie v. Matthews, 12 Ohio, 351.

The rule prohibiting a purchase by a guardian ad litem, not made for the benefit nor in behalf of his infant wards, is absolute, and it makes no difference that the purchase was made, not for the guardian's own benefit, but for that of some other person: Le Fevre v. Laraway, 22 Barb. 167. The presumption in the case of a purchase by the guardian ad litem is that it is for his benefit, and the burden is on him to show that it was made for the infant's good: O'Donoghue

Boise, 92 Hun, 3, 37 N. Y. Supp. 961. That the remedy of infants against persons purchasing from their guardian ad litem, who bought the property at a sale, is, in the absence of any statutory provision, in equity, and hence voidable and not void, see Dugan v. Denyse, 13 App. Div. 214, 43 N. Y. Supp. 308.

XI. Power to Waive Service of Process. As a general rule, a guardian ad litem cannot waive service of process: Robbins v. Robbins, 2 Ind. 74; Pugh v. Pugh, 9 Ind. 132; Cormier v. De Valcourt, 33 La. Ann. 1168. So the answer of guardian ad litem does not make his wards parties and dispense with the necessity of services of process: Frazier v. Pankey, 31 Tenn. (1 Swan.) 75. In Hannum v. Wallace, 28 Tenn. (9 Humph.) 129, however, it

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was held that, if not prejudicial to their interests, the guardian might waive service of a copy of the declaration and notice, thus saving delay and a useless accumulation of costs.

In Banta v. Calhoun, 9 Ky. (2 A. K. Marsh.), 166, it was held that if the guardian appeared, it was not necessary for process to be served on the infant. And where a minor has been served with cita. tion, and a guardian ad litem appointed for him, such guardian may waive notice of citation, and consent to a hearing: Pollock v. Buie, 43 Miss. 140. Where a warning order published against a minor defendant was not entirely definite as to the place at which he was warned to appear, and a guardian ad litem was appointed by the court, who filed an answer for his ward, it was held that the notice and appearance were sufficient to bind the latter: Williams v. Ewing, -31 Ark. 229.

XII. Right to Appeal. A guardian ad litem may and should appeal whenever, in his opinion, it is necessary to protect his ward's interest: Sprague v. Beamer, 45 Ill. App. 17; Loftis v. Loftis, 94 Tenn. 232, 28 8. W. 1091; Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015, and leave of the court is not necessary: Jones v. Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883.

Under a staute restricting the right of appeal to parties to a suit, a guardian ad litem may be a party thereto, and as such has the right of appeal on behalf of the infants, to protect or advance their interests: Thomas v. Safe Deposit etc. Co., 73 Md. 451, 21 Atl. 367, 23 Atl. 3. In Harlan v. Watson, 39 Ind. 393, it is held that such a guardian cannot appeal in his own name.

XIII. Power to Make Oath for Infant. The next friend of an infant may verify a pleading in the action in which he is acting: Turner v. Cook, 36 Ind. 129; and he may make an affidavit in replevin: Wilson v. Me-ne-chas, 40 Kan. 648, 20 Pac. 468; and also for an attachment, and stating therein that he has commenced the action as next friend sufficiently avers the agency: McDowell v. Nims, 15 Week. Law Bull. (Ohio) 359.

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XIV. Duty to Use Good Faith. A guardian ad litem must act toward the infant whom he represents in good faith: Spelman v. Terry, 74 N. Y. 448. In that case a special guardian attempted to make use of an invalid claim and to put a purchaser of such claim from him in possession of land of an infant. The court condemned any such action in the following words: “We do not hold that one appointed special guardian to sell infants' real estate, who then holds a valid encumbrance upon or & claim against the same, thereby loses his rights in his encumbrance or claim, or is to forego the sale of it to his own advantage. What we do hold is, that he may not after he is appointed, so use an invalid claim held by him, as to put a purchaser of it from him into

possession of the lands; whereby an action of ejectment is made necessary to regain possession by the one lawfully entitled. It is an act in hostility to the interests of his ward, and inconsistent with the duty he owes. For the damage from such act he should make just compensation. Such rule is a branch of the principle that one holding a relation of trust to another cannot deal with the trust estate or fund to his own profit and the harm of the cestui que trust." If the next friend plays his infant ward false, the judgment is not thereby rendered void, but the defrauded plaintiff may resort to a court of equity to set aside and undo the fraudulent work and to wipe out the record, falsely obtained, by which he is confronted: Cudleigh v. Chicago etc. Ry. Co., 51 Ill. App. 491.

In Ivey v. McKinnon, 84 N. C. 651, it is held that if in partition proceedings the interest of a prochein ami is adverse to that of the infant, a decree therein will not on that account be disturbed unless fraud or collusion is established. Where an infant sues a guardian personally for positive and specific fraud, no prior accounting from the guardian is necessary, as it is where an action upon a guardian's. bond against his sureties is sought to be brought: Koch v. Le Frois, 61 Hun, 205, 15 N. Y. Supp. 928. It is not a badge of fraud that a decree, rendered on a certain day, was entered as of a week previous, without objection from the guardian ad litem; nor that he failed to apply for a rehearing: Kingsbury v. Buchner, 134 U. S. 650, 10 Sup... Ct. Rep. 638. And taking a second mortgage by a special guardian is not wrongful, nor necessarily a breach of trust, where appointed for the sale of infants' lands: Monroe v. Osborne, 43 N. J. Eq. 248, 10 Atl. 267.

XV. Miscellaneous Rights and Duties. The powers of a guardian ad litem are strictly limited to the matter before the court. Hence he cannot bind his ward by a release, to qualify a witness to testify: Walker v. Ferrin, 4 Vt. 523; nor can he make a demise in ejectment: Massies v. Long, 2 Ohio, 287, 15 Am. Dec. 547. He cannot consent to a sale of his ward's real estate to satisfy notes for purchase money, before their maturity: Melton v. Browd, 20 Ky. Law Rep. 882, 47 S. W. 764. If, however, a sale of the minor's property is for his benefit, it will not, without complaint on his part, be set aside on the application of the purchaser: Curd v. Bonner, 44 Tenn. (4 Cold.) 632. Where a special guardian of infants entered into a contract of sale conjointly with the adult owners, and the deed tendered the purchaser was executed by the guardian jointly with the other owners, it was held no objection, the fact that other parties owning other interests joined in the same contract and deed not depriving either instrument of its binding effect upon all concerned: O'Reilly v. King, 28 How. Pr. 408.

Where an order is made by a court of chancery appointing a guard. ian for certain infants, and authorizing him to cancel a bond and

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mortgage belonging to them, upon receiving another one on unencumbered real estate, this latter provision is a condition precedent to his discharging the bond and mortgage, and he has no right to do ko unless he receives the security mentioned in the order: Swartbout v. Swarthout, 7 Barb. 354.

A replevin bond in a suit by an infant is valid, though executed by his next friend as one of the two sureties required by statute, bo zot being a party, but in the nature of an attorney: Anonymous, ? Hill, 417. He may elect to bring the infant's estate into botchpot: Andrews v. Hall, 15 Ala. 85.

Where a mortgage is given to the special guardian of an infant for the latter's benefit, such special guardian is the proper person to file a bill for the redemption and assignment of a senior mortgage upon the same premises: Pardee v. Van Anken, 3 Barb. 534. The in. vestment of infant's money by a guardian ad litem in the capital stock of a bank is legal, though it afterward fail: Haddock v. Planters' Bank, 66 Ga. 496.

A next friend falls within the principle that statements made in the course of judicial proceedings with regard to third persons are conditionally privileged and not actionable if made without malice, with probable cause, and under such circumstances as to reasonably create the belief that they were true: Ruohs v. Backer, 53 Tenn. (6 Heisk.) 395, 19 Am. Rep. 598.

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TOMPKINS v. PACIFIC MUTUAL LIFE INS. CO.

(53 W. Va. 479, 44 S. E. 439.) LIMITATIONS, Statute of--Bar of, When Prevented by Suit to Dismiss for Want of Prosecution. Under a statute providog that if any action commenced within due time should be arrested or reversed on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a now suit by reason of the cause having been dismissed for want of security for costs, or by reason of any cause which could not be applied in bar of the action, then, notwithstanding the expiration of the time within which a new suit or action may otherwise be brought, the same may be brought within one year after the dismissal of the other cause, or after the arrest or reversal of the judgment, the fact that the first cause was commenced in a court of the United States, where it was dismissed for want of jurisdiction, does not deprive the plaintiff of the benefit of the statute or of the right to bring a new action within a year after such dismissal. (p. 1011.)

INSURANCE Against Accident-Right of Examination.. Under a policy providing that any medical adviser of the company shall be allowed to examine the person or body of the injured in respect to an injury or cause of death, in such manner and at such

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