Woods v. Montevallo Coal & Transportation Co. , 107 Ala. 364 ( 1894 )

BRICKELL, C. J.

There is an error apparent on the face of the record, not affecting the conclusions of th.e chancellor as to the equities of the parties, and which could not have intervened if his attention had been directed to the regularity, or rather to the want of all regularity, in the mode of bringing the material defendant before the court. The defendant was an infant residing without the State, and it was only by publication in the mode prescribed by the statute, and the subsequent appointment of a guardian ad litem, for her, in conformity to the rules of chancery practice, that the court could acquire jurisdiction to render. a decree against her, not infected with error. When a decree against an infant defendant is assailed on error, the uniform ruling of the court has been that it cannot be supported unless the record shows affirmatively, that, in the precise mode the statutes and rules of practice prescribe, the infant has been brought before the court, and to represent and defend in his behalf a guardian ad litem has been appointed. — Rowland v. Jones, 62 Ala. 322, and authorities cited. The record does not disclose that an order of publication was made as to the infant defendant, or if such order was made that there was compliance with it, and that a guardian ad litem was appointed to represent and defend for her. All that appears is, that her next friend in the action of ejectment in which the judgment sought to be enjoined' was rendered, appeared of his own will and, styling himself guardian ad litem, made defense for her. The whole proceeding was irregular, and the irregularity compels a reversal of the decree. It may be, this conclusion will necessitate retaking the testimony, as it of necessity opens the door for the introduction of further evidence by the appellant. It would be a departure from the practice of the court to consider and express an opinion upon the merits of the case.

Reversed and remanded.