McQueen v. Grigsby

DENSON, J. This is a proceeding begun in the pro-mate court of Greene county for a sale of real estate and a division amongst joint owners. The order of sale was granted, and a commissioner was appointed to make the sale. He made the sale and reported it to the court in regular form. The report was duly confirmed by a decree of the court entered on the 28th day of October, 1906. From the decree of confirmation this appeal is prosecuted. In such proceedings the decree of confirmation is the final decree, from which an appeal may be prosecuted and on which the entire proceedings may be renewed. —15 Eneje PI. & Pr. 827, and cases cited in notes 4 and 5 to the text; Kellam v. Richards, 56 Ala. 238, 240, and cases there cited; Morring v. Tipton, 126 Ala. 350, 28 South. 562. A guardian ad litem for an infant defendant should not be appointed until the infant has been properly [660] brought before the court in one of the modes prescribed by law. Such premature appointment constitutes error, for which a decree of sale founded thereon will be reversed on appeal. — Walker v. Hallett, 1 Ala. 379; Hodges v. Wise, 16 Ala. 509; Cook v. Rogers, 64 Ala. 406; Herring v. Rickets, 101 Ala. 340, 13 South. 502; Cantelou v. Whitley, 85 Ala. 247, 4 South. 610. The record here shows affirmatively that all the defendants •are minors, and all under 14 years of age except one. It also affirmatively appears that the guardian ad litem for such infants was appointed on the day the application for the order of sale was filed, and before service was perfected on them. Consequently the decree of the probate court must be reversed, and the cause remaud-ed. The court should see to it that the service of process is perfected on the infants in the manner prescribed by law before entering a decree. We note that Phoebe Graham is alleged to be an infant but her age is not given, and that the person who has custody or charge of one of the infants is not alleged. The application should be amended in these respects. It does not followed that, because Sidney Dukes is a legatee under the will, he is an interested party, and therefore incompetent as a witness to prove the facts alleged in the petition. He may be a legatee, and yet have no interest whatever in the lands sought to be •sold. It is unnecessary to pass upon the action of the court in allowing the sheriff to amend his return, as new citations will have to be issued and served'. For the error pointed out, the decree of the court below is reversed and the cause remanded. Reversed and remanded. Tyson, C. J., and Simpson and Anderson, JJ., concur.