Laird v. Reese

B. E. SAEEOLD, J. The appellee petitioned the probate court to annul and set aside a final settlement of guardianship, made by the administrator of her guardian, on the 14th of March, 1864, on the ground of errors in the settlement, and because it was void on account of the nonacceptance by her guardian ad litem of his appointment. The appellant demurred to the petition, specifying: 1. A misjoinder of parties. 2. That the court had jurisdiction of the subject and of the persons of the parties interested, and the decree and proceedings were res judicata; not being void by anything apparent on the record. There were also pleas denying some of the'material allegations of the petition. The assignments of error are : 1. Overruling the demurrer. 2. Precluding a trial on the merits by the ruling on the demurrer. 3. The refusal of the court to dismiss the petition, for want of security for costs, the petitioner being a non-resident. It is doubtful whether security for costs can be required in a proceeding .like this,; but if so, as the probate court is to be governed by the laws regulating chancery practice, [154] in the absence of any more positive regulation, section 3338 of the Revised Code would control the matter of security for costs. The petition could only be dismissed for failure to give such security, after thirty days’ notice by the court. There is not a misjoinder of parties, as there is only one party on each side. It was the duty of the court, before proceeding to make a final settlement of the guardianship, to appoint a competent person to represent the interest of the minor. — Rev. Code, 2138. This appointment is not completed until the assent to act of the person appointed is signified. The transcript shows that a guardian ad litem was appointed and notified of his appointment; it also shows that he was present at the trial and made no objection. This is equivalent to an exposition that he did not accept the appointment in writing, nor do any act denoting his acceptance. The decree of the court.was, therefore, made without jurisdiction obtained over the person of the infant, and was void.—Frierson v. Travis, 39 Ala. 150; Jenkins' Distributees v. Jenkins' Adm'rs, 16 Ala. 693. The probate court may, on proper application, vacate any order, decree or judgment at any time subsequent to its rendition, if the same is void on the face of the record or proceedings.—Johnson v. Johnson’s Adm’r, 40 Ala. 247; Summersett v. Summersett, ib. 596, The decree of the probate court is affirmed.