Erwin v. Erwin

Wood, J., (after stating the facts). The only question presented by this appeal is whether or not a valid judgment can be rendered against the guardian of a minor plaintiff for alimony in an .action brought by the infant through 'him, under section 5175 of Kirby’s Digest, to annul the marriage contract, .alleging incapacity, for want of age or understanding, of consenting to the marriage. Under the statute, “the action of an infant must be brought by his guardian or next friend. ’ ’ Kirby’s Digest, § 6021. The statute makes the guardian or next friend liable for the costs of an action brought by 'him. Kirby’s Digest, § 6022. Under this statute, of course, the guardian, A. L. Erwin, would be liable for costs incident to the action brought by him ias set out in his complaint, but he would not be liable for the costs incurred by the cross-bill of the defendant in which she .asks for .alimony pendente lite and attorney’s fee. These are not matters of costs incident to the suit brought by the guardian for his infant ward. There is no statute authorizing a decree for alimony and .attorney’s fee in favor of the defendant against the guardian of the plaintiff in suits of this kind. In the .absence of such statute the court is not justified in rendering such decree. The statute provides for alimony and attorney’s fee in favor of the wife .and against the husband in .actions for divorce or alimony. Kirby’s Digest, § 2679. But this is clearly not that kind of an action; and, besides, if the action had been brought for divorce, under the above section the right to a judgment in favor of the defendant for alimony .and attorney’s fee, would be against the plaintiff in person, and not his guardian. In the case of Stivers v. Wise, 46 N. Y. Supp. 9, the presiding justice said: “I find no authority which justifies an order compelling the payment of alimony pendente lite by the guardian ad litem, or the next friend of the infant, or by the parent, in a suit for the annulment of marriage, on the ground that the infant was under the legal age of consent.” It is manifest that the decree allowed the $25 to appellee as cost money incident to her cross-bill, as well as the amounts .allowed for alimony and attorney’s fee. The decree is erroneous and is therefore reversed, and the cause is remanded with directions to the chancery court to set aside its judgment against the appellant A. L. Erwin as guardian.