It has been said by a learned author upon this subject of the appointment and duties of a guardian ad litem:

"The matter of the appointment of a guardian ad litem, I fear, is too often regarded as a mere matter of form. Attorneys, likewise, seem to be imbued with the idea that it is for the purpose of complying with the statutory provision. Such is not its object. The object and intent of the statute is, that such attorney should carefully investigate the rights of his ward, and should look after them with a higher conscientious regard of his duty than is required in ordinary cases. These minor defendants, by reason of want of years, are unable to know their rights, or protect them. Attorneys who act as such guardian ad litem should not be affronted if the courts in such cases make direct inquiry as to whether they have carefully looked into the infant's rights." 17

Sec. 77. Actions by or against infants-The next friend no party to the action-May employ counsel.

The relation of prochein ami to the action, and his duties, are simple and well defined. He is no party to the suit in the technical sense of the term, although he is responsible for the costs. He is considered as an officer of the court, especially appointed by it to look after the interest of the infant in whose behalf he acts. One of the duties required of him is that of employing an attorney to conduct the suit, as he is not supposed to be a person learned in the law, and his intervention is, by no means, to dispense with the services of an attorney to carry on the proceedings, and try the case if necessary."

Sec. 78. Actions by or against infants-The next friend and guardian ad litem perform the same functions. The guardian ad litem appointed by the court to protect the rights of an infant defendant, should file a general de

17 Probate Practice, Vol. I, Sec. 844, Judge Rockel (Ohio).

18 Baltimore v. Fitzpatrick, 36 Md. 624.

nial, and, in case the proper protection of the rights of his ward require it, he may take such affirmative action, by filing petition, or cross-petition, and other pleading, as may be necessary for that purpose. In a case where the rights of the infant require it for his protection, the guardian ad litem should file a denial as in actions for adults.

At common law, infants were required to sue by guardian ad litem, but by the statute of Westminster, they were authorized to sue by next friend in all actions, and the remedy was held to be cumulative, rendering it optional for the suit to be brought by a guardian ad litem, or next friend. In respect to the representation of an infant plaintiff by counsel, or guardian ad litem, there would seem to be little, if any, difference between the functions of a guardian ad litem and of a next friend. It may be well said that a guardian ad litem appointed by the court for an infant defendant, in addition to filing a general denial, has not only the power, but it is his duty to take affirmative action and prosecute by cross-petition, if it should be found necessary, and it was for the protection of the interests of the ward.19 We here quote from a standard work on this subject:

"A next friend is one, who, though not properly appointed guardian, represents in a suit, a party thereto, who is not. sui generis, as an infant. The term is synonymous with prochein ami. There is but little substantial difference between the office of next friend and that of guardian ad litem. The chief distinction is that the former is usually applied to one who appears on behalf of a plaintiff, while the corresponding representation of a defendant is usually denominated guardian ad litem." 20

19 Schade v. Connor, 126 N. W. (Neb., 1910), 1,013; Grosovosky v. Goldenburg, 86 N. W. 378.

2014 Enc. Prac. 997. Although the practice of allowing an infant to sue by his guardian, describing

him as such, is provided in this State, still he is in all respects the next friend of the infant. Simpson v. Alexander, 6 Coldw. (Tenn.)' 619.

Sec. 79. Actions by or against infants-Statutory provisions. In some jurisdictions the general guardian alone has power to bring and defend actions for an infant. But the matter is regulated in this State by statute. The guardian of the infant, or his next friend, is authorized to bring an action for the infant, or to defend an action for him. The following are the statutory provisions in regard thereto :

(a) A general guardian must appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose, as guardian or next friend.21

(b) The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend the court has power to dismiss it if it is not for the benefit of the infant, or substitute the guardian of the infant, or any person as next friend.22

(c) Nothing contained in the chapter concerning the guardianship of infants and insane or incompetents, affects or impairs the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein.23

The question arises, Why did the Legislature enact that a court had power to substitute the guardian for the next friend, if the action could not be brought by the next friend when there was a general guardian? It seems clear from the above enactment that the Legislature intended the action to be brought by the next friend, even in cases where there is a general guardian. This would seem to be not only the logic, but the common sense, as well as the spirit and purpose of these statutory provisions.

21 Snyder, 5,490; Wilson, 1,832; California, 1,763 (Kerr), similar.

22 Snyder, 5,563; Wilson, 4,227; Kansas, 4,459 (1901), identical. 23 Snyder, 5,584; Wilson, 1,826.

Sec. 80. Action by or against infants-The service of summons upon an infant under fourteen years of age-Over fourteen years of age.

When the defendant is a minor, under the age of fourteen years, the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care and control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone will be sufficient. The manner of service may be the same as in case of adults.24

Sec. 81. Actions by or against infants-Where infant not served, judgment void.

The service of summons upon an infant is mandatory; no matter how young the infant may be, or how idle the service of summons on a child may seem, the statute demands service, and it must be complied with. Even where a guardian ad litem has been appointed and interposes a defense for infants, and the record shows affirmatively that the infants were not served as required by statute, the decree entered against them is void, and can be assailed at any time, anywhere, and in any action.25

In a well-considered case, in regard to this question, it was said:

"The statute requires service to be made and we cannot dispense with its requirements. Nothing discretionary is left with the court. The Legislature prescribed the means by which the court shall obtain jurisdiction, and the courts cannot determine that anything short of such means shall give them jurisdiction. It is sometimes said that it can be a matter of no importance, whether children, such as these were, are served with process or not; to this we cannot give

24 Snyder, 5,611; Wilson, 4,275; Kansas, 5,405 (1901), identical; Nebraska, 1,077 (1907), identical.

25 Moore v. Starks, 1 O. S. 369.

our assent, and even if it were so, it is a suggestion proper for the Legislature and not for a court-the Legislature makes the rules and the courts have to be bound by them. The return of the officer is evidence to the court and to the world, of the fact that the party has been subjected to its process or not; whether he has been brought into court; whether jurisdiction is claimed to have been obtained over his person. If the process is returned served, it is proof of that fact. If the return is no service, that is proof equally explicit that no service has been made, and is notice to the world as well as the court, to parties and their friends, that no service is claimed to have been made. And here we will remark that this case differs from cases in which the record is silent on the subject of process or service. In such cases it has been held that although the decree of the court is reversible for error, not showing affirmatively a necessary fact, yet, where jurisdiction is assumed to exercise jurisdiction of the case, it will be presumed, that, notwithstanding the silence of the record, the court had obtained jurisdiction over the person of the defendant. That presumption is rebutted and precluded in this case by the positive statement of the record that no service was made. For it is to be remarked that in those cases where, the record being silent on the question of service, jurisdiction has been obtained, it has always been held that it was competent for the defendant to rebut the presumption of service by affirmative proof that he had not been served, then the record becomes a nullity and can be collaterally impeached. The record in this case furnishes the proof that no service was in fact made." 23

20 Moore v. Starks, 1 0. S. 372. When the record of a cause in which a judgment is rendered against a minor, discloses that the mode pointed out by statute for obtaining jurisdiction, has not been followed, the judgment is void on its face. Hughes v. Housel, 50 N. W. 1,127.

an

A stipulation by an attorney that action shall abide another action pending, will bind his adult clients, but not an infant client, unless the same is approved and ratified by the court. Idem v. Finnegan, 50 N. W. 933. The requirements of Section 76 of the Code of