GUARDIAN AD LITEM. A guardian ap pointed to represent the ward in legal pro ceedings to which he is a party defendant.
The appointment of such is incident to the power of every court to try a case ; Bullard v. Spoor, 2 Cow. (N. Y.) 430 ; and the power is then confined to the particular case at bar ; Co. Litt. 89, n. 16. His duty is to man age the interest of the infant when sued. In criminal cases no guardian is appointed : the court acts as guardian ; Reeve, Dom. Rel. 318 ; Field, Inf. 163. A guardian ad Wen cannot be appointed till the infant has been brought before the court in some of the modes prescribed by law ; Hodges v. Wise, 16 Ala. 509 ; Shaefer v. Gates, 2 B. Mon. (Ky.) 453, 38 Am. Dec. 164. See Allsmiller v. Freutcheuicht, 86 Ky..198, 5 S. W. 746. Such guardian cannot waive service of pro cess ; Robbins v. Robbins, 2 Ind. 74 ; and his powers are not limited to defence, objection, and opposition merely, but he may file a cross bill to protect the infant's interest in volved in the litigation, and appeal from a decree dismissing the same ; Sprague v. Beamer, 45 Ill. App. 17. The writ and decla ration in actions at law against infants are to be made out as in ordinary cases. In English practice where the defendant neg lects to appear, or appears otherwise than by guardian, the plaintiff may apply for and obtain a summons calling on him to appear by guardian within a given time; otherwise the plaintiff may be at liberty to proceed as in other cases, having had a nominal guard ian assigned to the infant ; Macphers. Inf. 359. A like rule prevails in New York and other states ; Van Deusen v. Brower, 6 Cow. (Ns Y.) 50; Clarke v. Gilmanton, 12 N. H. 515. Schoul. Dom. Rel. 596.
The omission to appoint a guardian ad Utem does not render the judgment void, but only voidable; Austin v. Trustees, 8 Mete. (Mass.) 196, 41 Am. Dec. 497. See Delashmutt v. Parrent, 39 Kan. 548, 18 Pac. 712. It will be presumed, where the chancel lor received the answer of a person as guard ian ad Utem, that he was regularly appoint ed, although it does not appear of record ; Stevenson v. Kurtz, 98 Mich. 493, 57 N. W.
580. See Robertson v. Robertson, 2 Swan (Tenn.) 197. It is held to be error to de cree the sale of a decedent's property on the petition of the representatives, without the previous appointment of a guardian ad titem for the infant heirs ; Craig v. McGehee, 16 Ala. 41. Where the general guardian peti tions for a sale of his ward's lands, the court must appoint a guardian ad litem; Wyatt v. Mansfield's Heirs, 18 B. Monr. (Ky.) 779; King v. Collins, 21 Ala. 363 ; McAllister v. Moye, 30 Miss. 258; Sturges v. Longworth, 1 Ohio St. 544; but this is not necessary where the application is for leave to invest money of the ward in land ; Callaway v. Bridges, 79 Ga. 753, 4 S. E. 687.
It seems that a guardian ad litem can elect whether to come into hotch-pot ; An drews v. Hall, 15 Ala. 85. An appearance of the minor in court is not necessary for the appointment of a guardian to manage his interest in the suit ; 11 E. L. & Eq. 156. If an infant comes of age pending the suit, he can assert his rights at once for himself, and if he does not he cannot generally com plain of the acts of his guardian ad litem; Mitchell v. Berry, 1 Mete. (Ky.) 602 ; Mar shall v. Wing, 50 Me. 62.
The appointment of a guardian ad litem is valid, although the infant has not been regularly served with process, but has only accepted service •thereof ; Cates v. Pickett, 97 N. C. 21, 1 .S. E. 763. The rule that a next friend or guardian ad litem cannot by admissions or stipulation, surrender the rights of the infant, does not prevent a guardian ad litem or procheis ami from as senting to such arrangements as will facili tate the determination of the case in which the rights of the infant are involved ; Kings bury v. Buckner, 134 U. S. 650, 10 Sup. Ct. 638, 33 L. Ed. 1047. A married woman can not be a guardian ad litem or next friend ; 34 Ch. D. 435.