Stinson v. Pickering

Yikgin, J. Courts of equity are careful of the rights of infant defendants. A bill is never taken pro confesso against them. Tucker v. Bean, 65 Maine, 352. If an infant has no guardian by probate appointment, a guardian ad litem must be appointed; and the duty of having such appointment made devolves upon the plaintiff', if no motion to that effect proceeds from the other side. Swan v. Horton, 14 Gray, 179. And the guardian must have accepted before further proceedings, which must appear of record. Daniel v. Hanagan, 5 J. J. Marsh, 49. It must also appear that the proposed guardian has no interest in the matter in suit adverse to that of the infant; and a co-defendant may be appointed, provided he have no adverse interest. 1 Dan. Ch. (4th ed.) 161, and cases cited in notes. In the case at bar, the infant’s father has been appointed her guardian by the probate court, and is also a co-defendant — all of which might be proper under certain circumstances; but inasmuch as he conveyed all the property in question, his interest in the result of this suit is adverse to that of his daughter and hence cannot rightfully represent his daughter in this suit, and a guardian ad, litem must be appointed.’ Moreover, it is the duty of the court to see that the rights of an infant are not prejudiced or abandoned by the answer of the guardian. (Barrett v. Oliver, 7 Gill, and J. 191;) and whatever admission there may be in the answer, the plaintiff is not exoner [276] ated from his duty of proving, as against the infant, the whole case upon which he relies. 1 Dan. Ch. 163, 169-70. Tucker v. Bean, supra. In the case at bar, the answer consents to the decree prayed for, but there is no proof of the allegations relied upon by the plaintiff. The case is therefore remanded for the appointment of a guardian ad litem, and for the taking of testimony to sustain the bill. Appleton, C. J., Barrows, Daneorth, Peters and Symonds, JJ., concurred.