Ward v. Eldredge ( 1896 )

The facts as alleged in the petition for mandamus were:

1. That relator filed a bill to obtain a divorce, his wife being at the time an infant of the age of 19 years; that a subpoena to appear and answer was served on the defendant; that defendant caused her appearance to be entered by Canfield & Spier, her solicitors, and filed an answer and cross-bill, entitled, “The several answer and cross-bill of Alice M. Ward, the defendant in the above entitled cause;” that said pleadings were signed and verified by the defendant in her own behalf, as was a petition for the allowance of temporary alimony and expense money by her filed on the same day; that relator objected to the hearing of said petition on the ground that defendant was a minor, and no guardian ad litem had been appointed for her in said suit, which objection was sustained, and an order made denying the relief prayed for.

2. That four days later the defendant filed a petition, duly verified, in which she asked for the appointment of one of her solicitors as guardian ad> litem to appear [ and defend said suit,' which request was granted, and an order made accordingly.

3. That on the same day said guardian ad litem took from the files in said case said answer and cross-bill, and after the title of the cause, “Robert A. Ward Complainant, v. Alice M. Ward, defend ant,” and the paragraph, “The several answer and cross-hill of Alice M. Ward, the defendant in the above-entitled cause, to the bill of complaint filed therein by said complainant,” inserted in writing “And the answer of Alice M. Ward, an infant under the age of 19 years, together with her cross-bill, by Silas B. Spier, her guardian, to the bill of complaint filed herein by the complainant,” and at the conclusion of the said answer, below the signature of Alice M. Ward, the said Spier signed the said original answer and cross-bill as follows, “Alice M. Ward, an infant, by Silas B. Spier, her guardian,” and filed the same in the office of the register in chancery for the county of Macomb.

4. That on the same day defendant’s solicitors served upon relator’s solicitor a notice to the effect that an order had been entered appointing said Spier guardian of the defendant; that the answer and cross-bill theretofore filed had been refiled by said guardian, and that the petition (for alimony) theretofore filed in said cause would be brought on for hearing on a day named in said notice.

5. That on the day fixed in said notice, said petition was called up for-hearing by Canfield & Spier,' who claimed to act for said defendant; that relator objected to said hearing because:

a — The petition was not filed by the guardian ad litem.

b — The petition the court was asked to hear was filed by the defendant in her own behalf prior to the appointment of the guardian ad litem.

e — No copy of the petition was served, with the notice of hearing of the same. (It was conceded that a copy of the petition was served on relator’s solicitor at the time the first notice of hearing was given, but that no copy of the answer and cross-bill, as indorsed and refiiod for defendant by said Spier, had been so served.) That despite said objections the prayer of the petition was granted, and an order made that relator pay to said guardian ad litem or to defendant’s solicitors, the sums of money allowed for solicitor’s and witness’ fees, and to said guardian ad litem the sum allowed for the maintenance of said defendant during the pendency of said suit.