Sec. 73. Actions by or against infants-Court has power to order payment of fee for guardian ad litem.

It is now, and has been the universal rule of the courts to allow a fee to be paid for counsel for guardian ad litem, for his services in protecting the interests of the infant out of any fund in the control of the court, and placed there by the services of the attorney for the guardian ad litem.

It cannot be seriously controverted that a guardian ad litem appointed by the court for an infant, is entitled to compensation. If the law were otherwise, the rights of infants would be at the mercy of anyone who saw fit to evade them. The statutes which make provision for the appointment of these officers imply that they should be compensated, and the proper court should fix their compensation as the one which is the witness of their services. That proposition cannot be gainsaid and has been uniformly so held."

Another court of last resort has held that where an attorney appears for the guardian ad litem, the relation of the attorney to the infant is the same as it would have been to an adult. It is further held that this doctrine did not at all conflict with cases holding that an infant cannot appear or plead by an attorney. The ground is, that after the guardian ad litem has been appointed, he aids the infant in selecting counsel and conducting the defense. That it is the employ

V.

7 Walton v. Yore, 58 Mo. App. 565; Nagel v. Schulling, 14 Mo. App. 576; In the Matter of Matthews, 27 Hun, 254; Gott v. Cook, 7 Paige, 52; Herbaugh v. Vance, 5 Lea (Tenn.), 113; Wilbur V. Wilbur, 138 Ill. 446; McCue O'Hara, 5 Radf. (N. Y.) 336; Halloway v. McIlhanney, 17 Tex. 657; Robinson v. Fidelity, 11 S. W. 106; Stewart v. Hoare, 2 Bro. C. C. 663; Fearns v. Young, 10 Ves. 184; Crump v. Baker, 18 Ves. 285; Union V. Van Rensalaer, 4 Paige, 84; American v. Davis, 67 S. W. 864,

108 Tenn. 442; Boring v. Jude, 53 S. W. 763. A suit was brought in the name of certain minors by request of their guardian. The minors were the real parties in interest. It did not appear that there was any intention on the part of the attorneys to look to the guardian for compensation, nor on the part of the guardian to become personally liable therefor. Held, that a court of equity would charge the estate of the minors with such compensation. Fillmore v. Wells, 10 Colo. 228, 15 Pac. 343.

ment of the infant is evidence from the fact that the infant and not the guardian pays such attorney. The legal services are, in such cases, necessary. 8 The court appointing the guardian ad litem, usually fixes the amount of the fee. And such amount is fixed, having regard to the character of the litigation, and the services actually rendered by such guardian ad litem.

Sec. 74. Actions by or against infants-The guardian ad litem may employ an attorney, when.

The guardian ad litem may employ assistance even when he is an attorney, and the assisting attorney may be allowed fees where the necessity of the case demands it. Where a guardian ad litem who is an attorney, employs counsel to assist him in conducting the litigation for his wards, he should be allowed a reasonable compensation for such counsel, for the performance of such services only as such guardian himself could not properly be expected to perform.10

8 Alexander v. Frarey, 9 Ind. 484; Doe v. Brown, 8 Blackf. (Ind.) 443. 9 15 Am. and Eng. Enc. Law, 14. 10 Richardson v. Tyson, 86 N. W. (Wis.) 250; Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1,015; Hamacker v. Bank, 95 Wis. 359, 70 N. W. 295; Thompson v. Ins. Co., 136 U. S. 287; Henry v. Henry, 103 Ala. 582. Before his appointment as guardian ad litem, an attorney agreed to accept such appointment in a protested suit, and conduct the litigation therein for his wards for a specified sum in the trial court, and the like sum for an appeal to the Supreme Court. He received and receipted for the agreed sum after the trial. Thereafter, the opposing counsel was changed, and

the guardian ad litem's right to appeal was opposed, and the general guardian attempted to procure his discharge and opposed all his efforts on behalf of his wards. Held, that the compensation of the guardian ad litem for services in the trial court was fixed by the agreement, but the circumstances of the appeal were so changed from those contemplated when the agree ment was made that compensation will not be awarded on the agree ment. In this case the general guardian opposed the action of the guardian ad litem, and attempted to prevent his taking an appeal, whereby his wards were saved large sums of money. Richardson v. Tyson, 86 N. W. (Wis.) 250.

Sec. 75. Actions by or against infants-Guardian ad litem allowed attorney's fee for counsel employed by

him in allowance of his own account, when.

If the guardian ad litem, who is a lawyer and attorney, acts fairly, makes full disclosure, and does not make unreasonable demands for credit or allowance, he may be allowed compensation for services, and such necessary attorney fees filed in his account. This rule was enforced in a case where the guardian ad litem gave services, and when his account came up for allowance, it was resisted by those interested in the property in litigation, which necessitated the appointment and services of a guardian ad litem for the infant heirs.11

Sec. 76. Actions by or against infants-Nature of the duties of the guardian ad litem.

The duties of a guardian ad litem are in no wise like those of a guardian of the person and estate of a ward appointed by the county court. The guardian ad litem has nothing to do with the management of the property of the infant in the suit in which he has been appointed guardian ad litem. He has no authority over the property or the person of the infant for whom he acts. All that the guardian ad litem does is under the control and supervision of the court having control of the case in which he was appointed.1

12

In an action in the probate court to enforce an agreement for the conveyance of real estate under the terms of a will, a guardian of a minor has no authority to waive the issuance and service of summons on his ward and dispense with the services of a guardian ad litem, unless authorized by statute. A judgment against a minor in a case in which he has not had his day in court, will be reversible on petition in error within the statutory time after reaching the age of majority.13

11 Richardson v. Tyson, 86 N. W. (Wis.) 250.

12 Marsh v. Marsh, 4 A. L. R. (Ohio), 25.

13 Roberts v. Roberts, 61 O. S. 896.

Counsel should remember always that the provisions of the statute as to service of summons upon an infant defendant, and the requirements of the law as to methods of procedure in all cases in which an infant is interested, are made for the protection of the infant. These requirements of the law are not mere matters of form to be treated lightly and considered of no importance. Because no Because no one appears for the infant, the attorney conducting the proceedings, somehow conceives the notion that the requirement is only a matter of form; but as it is necessary to give good title for all real estate sold at judicial sale, a strict compliance with the statute in all cases affecting an infant's lands being sold by order of court, must be complied with. The skillful examiner of title to such real estate, and the careful lawyer who conducts the action in which real estate is sold by order of court is most particular to see to it that the foregoing provisions of the law for the protection of the infant are carefully and scrupulously complied with. The service of summons upon an infant, no matter how young, must be in strict compliance with the requirements of the statute, and these requirements of the statute are never, at any time, in any action, to be considered as mere formal matters; for a suit cannot be prosecuted against an infant without such service, and, in certain instances, without such guardian, unless especially excepted in special statutory proceedings. It is the purpose of the State to secure for the infant a real and proper defense; and such guardian ad litem, has not done his duty by simply filing an answer as required by statute. The law demands that he inquire of the infant if old enough to converse intelligently, and his friends, and from all proper sources of information, what the rights of the infant are, and he is required to set such rights before the court in the proper manner, and by proper evidence at the hearing of the case. It is the bounden duty of such guardian ad litem not only to file his answer of denial, but also to protect the interests of his wards. And the court will never, when its attention is called to it, allow the guardian ad litem to suffer

Such

his ward to be prejudiced by omissions or laches. answers too frequently are filed, and the proceedings on behalf of the infant are conducted as though the action as to the infant were an amicable matter, and in the nature of an ex parte proceeding, involving no subject of real controversy. This is a mistake, and want of attention as to such matters on the part of attorneys and courts, is, and has been, prolific of useless litigation, and the source of many imperfect real estate titles throughout the State.14

An infant two months old cannot be divested of real estate in which he owns the fee simple title, by a judicial proceeding to which he was not a party, of which he had no notice, and in which he was not represented by a guardian or otherwise. 15

The requirements of the law as to service of summons upon infants are so strict that in one instance, where the infant was five or six years old, the court set aside a decree, long after it was entered, authorizing the disposition of the infant's real estate, even where a guardian ad litem had been appointed and had filed an answer in the case for the infant, the infant not having been served with summons. The service of the summons in the action, as shown by the return of the writ, was by reading the same to the mother and stepfather.10

14 Long v. Mulford, 17 O. S. 503; Dowe v. Jewell, 1 Foster (N. H.), 486; Knickerbocker v. DeFrust, 2 Paige, 804; Sconce v. Whitney, 12 Ill. 150; Enos v. Capps, 12 III. 257. In a proceeding by an administrator for the sale of lands to pay debts, the answer of the guardian ad litem for the minor heirs, alleging his ignorance of the matters contained in the petition, and praying that the rights of his wards be protected, has the effect of a general denial, and requires proof of all the ma

terial averments in the administrator's petition. Wood v. Butler, 23 O. S. 520; but, see, Randall v. Turner, 17 O. S. 262; Massey v. Donaldson, 8 Ohio, 377. A decree against minor defendants rendered upon an answer of their guardian ad litem, can be impeached and reversed for fraud. Massey v. Mathews, 12 O. 362.

15 Crapster v. Taylor, 74 Kan. 771, 87 Pac. 1,138.

16 Moore v. Starks, 1 O. S. 371.