Wiley v. Jones

Atkinson, J. Tlie ordinary, suing for the use of one of the heirs at law of a decedent, brought suit on the bond of the administrator against the heirs at law of the surety, alleging that the estate of the surety had been finally settled and distributed among such heirs, with a prayer for a judgment against each heir for the pro rata amount necessary to discharge the liability of the principal to the use of the plaintiff. One of the defendants was a minor for whom a guardian ad litem was appointed, who accepted the trust .and united in certain demurrers filed by the defendants. The court sustained the demurrers. A bill of exceptions was sued out, assigning error upon the judgment sustaining the demurrers. There is an acknowledgment of service upon the bill of exceptions, by attorneys describing themselves as being “attorneys for defendants in error,” following which are the names of all the defendant heirs at law, including the minor. The acknowledgment of service does not contain the name of the guardian ad litem, nor was a copy of the bill of exceptions served upon him. Meld: (1) The guardian ad litem was a'necessary party to the bill of exceptions. (2) The acknowledgment of service in the name of the minor does not bind the ; guardian. (3) The writ of error must be dismissed for a failure to [636] serve sueli guardian ad litem. See, in this connection, Vickers v. Hawkins, 128 Ga. 794 (58 S. E. 44); Groce v. Field, 13 Ga. 24; 10 Enc. Pl. & Pr. 668-9, and note; Strayer v. Long, 83 Va. 715 (3 S. E. 372); Boyer v. Boyer, 89 111. 447; Clarke v. Gilmanton, 12 N. H. 515; 22 Cyc. 678; Freeman v. Carnock, 2 Dickens’ Rep. 439; Taylor v. Atwood, 2 P. Wms. 643. Argued June 7, Decided November 12, Rehearing denied December 21, 1907. Action on bond. Before Judge Felton. Bibb superior court. September 15, 1906. B. L. Anderson, for plaintiff. T. J. Cochran and -John P. Boss, for defendants. Writ of error dismissed.