Tyson v. Richardson

Maeshall, J. It was the duty of the court or judge, or some officer authorized by law to perform the duties of judicial administration in the action, to appoint a guardian ad Utem for the infant defendants, and such guardian was required to be an officer of the court fully competent to understand and protect the rights of the defendants, and in no way connected in business with the attorneys for the adverse party, and of sufficient financial ability to compensate the infants for any loss that might be sustained by them through his neglect or misconduct in attending to their defense. Circuit Court Rule IX, secs. 3, 4. That requirement was. complied with. It was the further duty of the person appointed, being an officer of the court, to accept the trust reposed in him and to seasonably investigate the questions, of law and fact involved in the litigation, and to the best of his ability discover the rights of the defendants, to take [400] nothing for granted in plaintiff’s favor that by any reasonable probability could be the subject of contest, to make no admissions regarding such matters adverse to the defendants, but to put the plaintiff to proof of the facts as to every such matter upon which relief in her behalf was demanded, to make a vigorous defense against plaintiff’s claim where defense was reasonable in any view of the case, to bring all the facts and the law in defendants’ behalf, so far as practicable, to the attention of the court, not stopping even with an adverse decision if reasonable doubt as to its justice existed ; and it was the duty of the trial court to see that the duty of the guardian ad litem, as indicated, was faithfully performed. Tyson v. Tyson, 94 Wis. 225. The appellant comprehended with strict accuracy the nature of his office and brought to the discharge of its obligations able, faithful, and successful service, meeting and overcoming not only the adverse attack upon the infant defendants’ rights, but upon his own conceptions of duty, as indicated in the two opinions filed in this court. Tyson v. Tyson, supra, and S. C. 96 Wis. 59. Having performed the labors incident to his position, as stated, the appellant was entitled to a reasonable compensation for his services and to his reasonable disbursements, and it was the plain duty of the court, whose officer he was, to examine his claim for such compensation and disbursements, and to audit and allow it at the proper sum, and also to use its power, so far as reasonably necessary, to enforce payment of such allowance out of any property of defendants controlled by the court or protected by its decree, in accordance with settled principles of judicial administration. Infant defendants in such cases are the wards of the court and entitled to its special care and protection. A guardian ad Utem is the arm of the court, as it were, with which that duty is performed, and the presiding judge should always be alive to the importance of it& officer in such a situation, [401] ■defending its wards with the strictest fidelity, and should encourage faithful service in that regard in every practical way. To that end he should use all reasonable means to see that such officer is not compelled to go without proper remuneration for his services, where there is property of its wards that can be reached by its "jurisdiction. A brief reference to authorities will amply show that the foregoing observations are in accord with a practice that is quite ancient and universal, especially in suits in equity and chancery proceedings. In New York there is a rule of court on the subject, but in Weed v. Paine, 31 Hun, 10, the court said that such rule goes no further than the inherent power of the court, which extends to the making of a proper allowance to a guardian ad litem in view of services in fact performed, payable out of the subject matter of the action; that such an allowance has nothing to do with the Code provisions in relation to costs and allowances in actions. In Union Ins. Co. v. Van Renssalaer, 4 Paige, 85, it was held that an allowance, in addition to taxable costs, should be made to a guardian ad litem, such allowance, however, to be paid out of the infant’s property under the control of the court. To the same effect are Field, Inf. 251; Simp. Inf. 464; 2 Daniell, Ch. Pr. 1451; In re Howe, 2 Edw. Ch. 484; Gott v. Cook, 7 Paige, 521; Gibson, Suits in Ch. § 1031; 2 Barb. Ch. Pr. (1st ed.), 207; Richardson v. Van Voorhis, 3 N. Y. Supp. 396; Kerbaugh v. Vance, 5 Lea, 113; Persons v. Young, 7 Lea, 293; Ex rel. Sheahan v. Wayne Circuit Judge, 42 Mich. 69. A distinction is made in the authorities between the method of enforcing payment of the compensation allowed to an attorney for services rendered an infant defendant, and such an allowance to a guardian ad litem, who is an attorney of the court. In the former case, it is said, the court will not, ordinarily, exercise jurisdiction beyond the fund or property actually recovered and under the control of the court. Gibson, Suits in Ch. § 1030; Garner v. Garner, 1 Lea, 29. But in [402] the latter situation it has been held that the guardian’s allowance may be declared by the court a lien upon the property and property rights protected in the action, and enforced as such, and no distinction in that regard is made between real and personal property. A little reflection upon the situation of a case like this will render clear that the power of the court to appoint one of its attorneys guardian ad litem, and impose on him the duty of protecting the title of infants to property, must necessarily carry with it the, power to see that, its appointee shall be properly compensated for his services and reimbursed for his reasonable expenditures, by controlling the property forming the subject of the action to that end. Such has been the rule in equity as far back as the books record the practice in regard to enforcing payment of costs, where necessary. In 1747 (Cannon v. Beely, 1 Dickens, 115), the English court of chancery, upon the defendant, in whom the estate in controversy was vested by its decree, refusing to pay the costs, ordered sufficient of the estate sold to pay them. In Burkett v. Spray, 1 Russ. & M. 113, it was said, in effect, that to turn a party away, who is entitled to a charge on the property affected by the decree, to recover his costs at law or as best he may, is contrary to the uniform practice in courts of equity, and that a sale of a part of such property should be made, if necessary, to make such payment. It seems that the power of the court is ample, not only to make the proper allowance to the guardian ad litem for his services and disbursements, but to make the same a lien upon the title of the owner of the estate in remainder, and to make proper directions for the enforcement of such lien. It is considered that in this case, notwithstanding some contingent remainders, all persons in being, so far as it appears, having the first vested estate in remainder being before the court, all dependent estates are also represented and will be [403] bound by whatever determination may be made, so that the power of the court is ample to make the lien of the guardian ad litem?s claim extend to the entire estate in remainder. Barb. Parties (2d ed.), 488-9; Story, Eq. Pl. (Redf. ed.), sec. 144. The precise character that a lien of a guardian ad litem should take, and the manner in which it should be worked out, must necessarily be governed by the facts of the particular case. It should evidently not go beyond control of the income of the property where that will be reasonably sufficient to satisfy the claim within a reasonable time. But where there is no income, as appears to be the case here, some portion of the property itself must necessarily be sold in such manner as to raise the requisite money with the least practical sacrifice. It is considered, under all the circumstances, that the trial court should make the proper allowance to the guardian ad litem, and order that the same constitute a lien upon the estate in remainder^ and that unless paid within one year from the entry of the order, with legal interest thereon from such entry to the date of payment, that the lien may be enforced by foreclosure and sale according to the rules and practice of the court and the statutes on the subject of foreclosure of mortgages. By the Oowrt.— The order appealed from is reversed, and the cause remanded for further proceedings according to this opinion.