Dickinson v. Jordan , 210 Ala. 602 ( 1924 )

The widow of W. A. Jordan, deceased, and his minor daughter, who sued by her guardian and next friend, her mother, filed this bill for a sale of all the lands which had been owned by deceased — who died intestate — including the homestead which had been set apart to complainants. So far as concerned the interest of the minor in the homestead and in the other lands which had belonged to deceased, the prayer was for a sale for reinvestment. No party defendant was named in the bill. Appellant was appointed guardian ad litem, but did not answer the bill, nor does the record show that any defense was attempted. However, the guardian ad litem has appealed.

An infant, properly represented, may be a party either complainant or defendant to a bill for partition. But partition is an adversary proceeding. McMath v. DeBardelaben, 75 Ala. 68. The interest of complainant Eula G. Jordan is antagonistic to that of her daughter in this proceeding; at least, the court must proceed on that assumption. Nichols v. Nichols, 67 Am. Dec. note 710. Complainant Eula G. Jordan should not be allowed to proceed with this suit as guardian or guardian ad litem for her infant daughter. Swope v. Swope, 173 Ala. 163, 55 So. 418, Ann. Cas. 1914A, 937; Dowty v. Hall, 83 Ala. 168, 3 So. 315. No judgment or decree can be rendered as between adversary parties where there are no adversary parties. The decree in this case is a nullity, and the appeal must be dismissed.

Appeal dismissed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.