Opinion
1 Div. 735.
December 22, 1932. Rehearing Denied January 19, 1933.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
C. L. Hybart, of Monroeville, for appellants.
It is the duty of every complainant to bring parties defendant before the court and obtain the necessary order for the appointment of a guardian ad litem for infant defendants and to compel an answer from such guardian. Until this duty is performed, complainant is not entitled to relief, and no decree can be rendered for him, whatever may be the merits of the case. A cause is not at issue as to an infant defendant until after a guardian ad litem has been appointed and answered, and such guardian must be appointed as authorized by law. A guardian could not be appointed where service was not had upon the infant as the rules of court require. If there was no service, there was no authority for the appointment of a guardian ad litem. Roach v. Hix, 57 Ala. 578; Daily's Adm'r v. Reid, 74 Ala. 415. This proceeding is not a collateral attack upon the decree as rendered, but is a direct proceeding to reopen said decree. Knight v. Garden, 196 Ala. 519, 71 So. 715. An infant must be brought before the court as a party in one of the modes prescribed by law before the appointment of a guardian ad litem. Hamilton v. Tolley, 209 Ala. 536, 96 So. 584. Relief may be obtained in equity by one who is able to show that the judgment or decree by which he is sought to be concluded was obtained in a suit of which he was not notified. McAdams v. Windham, 191 Ala. 287, 68 So. 51.
Barnett, Bugg, Lee Jones, of Monroeville, for appellee.
Erroneous appointment of a guardian ad litem may be voidable, but is not void, and judgment based thereon cannot be set aside on collaterad attack. Hamilton v. Tolley, 209 Ala. 536, 96 So. 584; Preston v. Dunn, 25 Ala. 507; Bondurant v. Sibley's Heirs, 37 Ala. 565; Alabama Water Co. v. Attalla, 211 Ala. 301, 100 So. 490, 491; Bell v. Bannister, 212 Ala. 31, 101 So. 653; Alabama Pub. Serv. Comm. v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872; Fowler v. Fowler, 219 Ala. 453, 122 So. 440; Warren v. Southall, 224 Ala. 653, 141 So. 632. Minors for whom guardians ad litem are appointed and have filed answer are bound by the decree. Byars v. Spencer, 206 Ala. 79, 89 So. 280. The appointment of a guardian ad litem brings the minor into court. Manson v. Duncanson, 166 U.S. 533, 17 S.Ct. 647, 41 L.Ed. 1105.
The complainants, minors over fourteen years of age at the time, and residents of Monroe county, Ala., were parties defendant to the proceedings on the equity docket of the circuit court of said county for a sale of the real estate here involved for partition and division among the joint owners thereof, which culminated in a final decree of sale at which the defendant became the purchaser.
The bill seeks to have this former proceeding set aside, and held for naught so far as their interest in the property is concerned. Confessedly, upon their face the proceedings are entirely regular, but it is insisted they contain false recitals to the effect that these complainants, who were over fourteen years of age, were served with notice. A guardian ad litem to represent their interest was duly appointed, accepted the duties of the office, and answered the bill. But it is argued that such appointment was void for the reason the minors had not in fact (though the proceedings state to the contrary) been served with notice. We consider the question to have been settled adversely to complainants' contention by the case of Preston v. Dunn, 25 Ala. 507, where the court said: "The Chancery Court is the general guardian of all infants within its jurisdiction, and by virtue of its general powers has authority to protect their rights, when defendants in that court, by the appointment of a guardian ad litem. * * * For this reason, if the infant is not brought into court by service before the appointment is made, we hold it to be an irregularity sufficient to reverse the decree on error; but we have found no case, which goes to the length of denying to the chancellor the power of making the appointment without service. The authority to do so results, as we have said, from the general powers which belong to the Chancery Court, and may be exercised whenever the fact of infancy is established and the infant is within the jurisdiction of the court. * * * The improper exercise of this authority may be reviewed on error, but the act is not void, and the decree rendered could not, therefore, be attacked collaterally, for the want of jurisdiction."
The foregoing language is directly applicable to this case as disclosed by the averments of the bill and exhibits thereto. This authority has not been questioned, but has been cited approvingly in our subsequent decisions. Tabor v. Lorance, 53 Ala. 543; Waring v. Lewis, 53 Ala. 615; Bondurant v. Sibley's Heirs, 37 Ala. 565; Hamilton v. Tolley, 209 Ala. 533, 96 So. 584. See, also, Warren v. Southall, 224 Ala. 653, 141 So. 632.
We find nothing in the cases of Roach v. Hix, 57 Ala. 576, 578; Daily's Adm'r v. Reid, 74 Ala. 415; McAdams v. Windham, 191 Ala. 287, 68 So. 51; Knight v. Garden, 196 Ala. 516, 519, 71 So. 715, which militates against the conclusion here reached.
The chancellor correctly sustained the demurrer to the bill, and his decree will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.