Frierson v. Travis , 39 Ala. 150 ( 1863 )

A. J. WALKER, C. J.

The account of Gideon B. Fri-erson, as guardian of Elias F. Travis, the appellee, was adjudicated by a decree of the probate court on the 24th October, 1853. We are to decide whether that decree is void. Its validity is impeached, upon the ground that the ward was an indispensable party to the proceeding, and was not in any legal mode made a party.

In proceedings before the probate court, for settlement of the accounts of executors and administrators, notice may be given through a newspaper published in the county; and if there be no newspaper in the county, by advertisement posted at the court-horrse and three other public places in the county.- — -Code, § 1805. This regulation is applicable to the'settlements of guardians. — Code, § 2039 ; Allen v. Martin, 34 Ala. 442; S. C., 36 Ala. 330. Therefore, notice may be given of the settlement of a guardian’s account, by advertisement, posted up at the ^court-house and three other public places, when no newspaper is published in the county¡

At the commencement of the proceedings for the settlement of the guardian’s account, it was ordered by the court, that notice should “be given by written advertisements^ set up at the courthouse-door, for three successive weeks.” In the decree it is recited, that the prescribed notice had been given; and that fact, together with the failure of the guardian ad litem, to maker objection to the guardian’s accounts and vouchers, is set forth as the ground upon which the decree is based. It is an unavoidable inference from what we have stated, that no personal notice,* was given to the ward, that no notice in a newspaper was^given, and that no notice was either posted, or ordered to be posted, at three other public places in the county besides the court-house.

The statute authorizes the adoption of a certain mode of giving notice, which may be regarded as the equivalent of personal notice. The probate court did not require a compliance with the statute; and it was not complied with, either literally, or substantially. Nothing less than the statute has prescribed can be a legal constructive notice.— Jenkins v. Jenkins, 16 Ala. 693. The decree must, therefore, be treated as if rendered without notice to the necessary party. It can not, therefore, be effectual against the ward, who was interested adversely to the guardian, unless in some legal mode the want of notice is excused.

[2.] It is contended, that a guardian ad litem was appointed, and represented the infant; and that that fact gave jurisdiction over the person as to the infant. This court decided, in Preston v. Dunn, (25 Ala. 507,) that the chancery court was the general guardian of all infants; and that, therefore, the chancellor, appointing a guardian ad litem, without notice to the infant, would merely perpetrate an irregularity, which would not make the judgment absolutely void. We see no reason why this doctrine should not be applicable to the probate court, many of whose powers are concurrent with those of the chancery court, and which is governed, in the main, by' rules of practice analogous to those of the chancery court. — King v. Collins, 21 Ala. 363. But we cannot find, from the record, that the infant in this ease was ever represented by a ¡.guardian ad litem.

On the 21st September, 1853, the probate court made an order that G. W. Jennings be appointed guardian ad litem, and that notice issue to him. ' On the 24th October, 1853, it is recited in the order of the court, that the notice previously required was given; that the guardian ad litem was present, and made no objections to the accounts and vouchers ; and that, therefore, they were allowed. These recitals, which contain everything pertaining to the subject, fail to show, or authorize the inference, that the guardian accepted the appointment. They do show that he was present; but he may have been present, without consenting to the appointment. And if we resort to speculation, it could be more reasonably argued, that ‘ the guardian ad litem was present, and did not accept the appointment, than that, haying assumed the obligations of the trust, and being present, he utterly neglected his duty, and suffered the law to be violated, by an allowance of the account and vouchers, without the slighest proof, and yet interposed no objection. The statute expressly required proof of the items on the credit side of the account; and if the guardian accepted the trust, we have his neglect of duty superadded to the judge’s inattention to the law. — Code, § § 1800, 2039.

To make up the representation of an infant by a guardian, there must be an express assent by him to the appointment, or there must be some action by him denoting his assent.— Greenup v. Bacon, 1 Monroe, 108; Shaefer v. Gates, 2 B. Monroe, 453 ; Bustard v. Gates, 4 Dana, 429; Banta v. Calhoun, 2 A. K. Mar. 166; Benningfield v. Reed & Sutherland, 8 B. Mon. 102; Bank of the U. S. v. Cockran, 9 Dana, 395; Daniel v. Hannagan, 5 J. J. Mar. 48 ; Doe, ex dem. Duval's Heirs v. McLoskey, 1 Ala. 708-726; Smith v. Smith, 21 Ala 761; Cato v. Easley, 2 St. 214. The infant can not be bound by the acts of a guardian ad litem, until the responsibility of the office is imposed; and this can not be until he accepts the appointment.

We agree that, when the validity of a decree of the probate court is assailed collaterally, its language should be construed most favorably to the maintenance of the jurisdiction.— Jemison v. Smith, 37 Ala.; King v. Kent, 31 Ala. 542. But the court can not add to the language of the record, and, under the pretense of interpretation, incorporate a new fact. The presence of the guardian ad litem does not imply an assent to his appointment, and the fact of such presence can not in any way embrace the idea of an acceptance of the office.

The question of the presumption of notice, when the record is silent upon the subject, was discussed by Judge StoNE in the case of Hunt v. Ellison, 32 Ala. 193. But, whatever may be the doctrine upon that subject, the presumption of a fact can not be indulged as an excuse for the want of notice, when it affirmatively appears that no notice was in fact given. If the iécord affirmatively discloses that a judicial proceeding was without notification to a party, an excuse'f or ;jthe want of notification can not be supplied by intendment; and we presume jio case can be found to sustain a proposition to the contrary.

The decree of the probate court was made in the absence of jurisdiction over the person of the infant, and was, therefore, void.

[3.]. As the decree of the probate court is a nullity, the bill is not necessarily to be regarded as filed alone to correct errors, under section 1915 of the Code. It may be regarded as the commencement of a proceeding to settle the accounts of the guardian, and recover the balance due the ward from the surety of the guardian. The decree being a nullity, and therefore entirely removed from view, the bill is not one for the correction of errors. It sets forth an equitable cause of action on a guardian’s bond. It is shown that the guardian, being the principal obligor in the bond, was a non-resident of thejState of Alabama, and died in the State of Texas, and that there was no administration upon his estate. With regard to the other surety, not made a party, it appears that he died insolvent. These facts constitute a sufficient excuse, under our decisions, for the failure to make the ¿representatives of the deceased obligors parties. — Moore v. Armstrong, 9 Porter 697; Watts v. Gayle & Bower, 20 Ala. 817; Saunders v. Godley, 23 Ala. 473.

No error in the taking of the account has been pointed out to us, and we have detected no error therein prejudicial to the appellant.

The decree of the chancery court is affirmed.