Concklin v. Hall

The Chancellor. The order for the appointment of the guardian ad litein was regular; so far at least as to protect the title of the purchaser under the decree. There is no unbending rule of practice in relation to the appointment of a guardian ad litem, for an infant defendant, upon the application of the complainant, -where the infant and his friends neglect to procure the appointment-of a guardian ad litem, for him, within twenty days after the return day of the subpoena. The usual practice is to grant an order nisi, appointing some suitable person guardian ad litem for the infant defendant, unless the defendant, within ten days after the service of a copy of the order, procures the appointment of another person ; as prescribed in the case of Knickerbacker v. De Freest, (2 Paige’s Rep. 304,) But this court has also sanctioned the practice of giving notice to the infant, at the time of serving the subpoena, where he is of the age of fourteen or upwards, or to his relative or protector, in whose presence the subpoena is served, where he is under [139] that age, that if he does not procure the appointment of a guardian ad litem, within twenty days after the return day of the subpmna, the complainant will apply to the court to appoint a guardian ad litem for him, without further notice. And in the case of infants who are absentees, it is a matter of course to make an absolute order for the appointment of a guardian ad litem, for them, without further notice ; where they or their friends do not procure a guardian to be appointed within twenty days after the expiration of the time limited in the order of the court for their appearance. The affidavits show, that the course of practice first suggested was not adopted in this case. But the second may have been pursued, notwithstanding the affidavit of one of the infants, that she had no recollection of the service of any paper except the subpoena. Even if the vice chancellor erred, however, in not giving to the infants a further opportunity, to apply and get guardians ad litem appointed for themselves, after the expiration of the twenty days from the return of the subpoena, that formed no sufficient ground for the refusal of the appellant to complete his purchase. The affidavits do not show that the infants had any defence whatever to the suit; or that their guardian ad litem had in any way neglected their interests. Under such circumstances, the court would not have set aside the order appointing him, upon then application, even if such application had been made before the sale by the master. Again; the purchaser, in this case, was himself a party to the suit, and cannot raise the question as to the regularity of the decree in this collateral way. If the decree was irregular, so that a purchaser at the master’s sale would not get a good title to the premises, the appellant might have applied to the court, directly, either in behalf of himself, or of his infant children, to ¿et aside the decree on that ground. The order appealed from must be affirmed with costs.