Weaver v. Glenn , 104 Va. 443 ( 1905 )

Whittle, J.,

delivered the opinion of tbe court.

This action of ejectment was brought by tbe defendant in error against tbe plaintiffs in error to recover tbe land described in tbe declaration. At tbe trial, tbe defendants "without waiving any of their rights, agreed with tbe plaintiff to submit all matters of law and fact to tbe determination of tbe court, whereupon a joint judgment was rendered against them for. tbe land in controversy and costs.

It appears that four out of tbe five claimants of tbe property in fee simple are infants, .and that no guardian ad litem, was appointed to defend them, which omission constitutes the first assignment of error. In every action or suit against an infant defendant, it is the duty of the court wherein the same is pending, or of the judge or clerk thereof in vacation, to appoint, a guardian ad litem to represent the interest or estate of the infant. Ya. C'ode, 1904, sec. 3255.

“So necessary is .the .appointment of a guardian ad litem esteemed,” says Mr. Minor, “that although the process against an infant is issued and executed against, him just as against .an adult, and the declaration or bill setting forth the complaint is framed and filed in like manner, yet, after the declaration or bill is filed, no rule or any proceeding whatever can be had lawfully until a guardian is designated; and any step that is taken will be void as to the infant.” 1 Minor’s Inst. (2nd Ed.), 432; 1 Barton’s Law Pr. 206.

In Turner v. Barraud, 102 Va. 324, 46 S. E. 318, this court held: “The only way known to our law of bringing an infant before a court is by a guardian ad litem appointed to conduct his defense for him. If he has appeared in a suit by a guardian ad litem regularly appointed for that purpose, he cannot after-wards, in an independent suit impeach a decree rendered against him for errors and irregularities in the proceedings in the suit in which the decree was rendered; but if no guardian ad litem w.as appointed or recognized by the court, he is not bound by the action of one who assumed to act for him, and the decree against him is void, and may be collaterally assailed.”

In the yet more recent case of Langston v. Bassette, ante, p. 47, 51 S. E. 218, it is said: “As an infant can only appear and defend by guardian ad litem, proceedings against him are generally fatally defective unless the record shows that a guardian ad litem was assigned him. Code, 1881, sec. 3255 (Va. Code, 1904, p. 1114). See Roberts v. Stanton, 2 Munf. 129, 5 Am. Dec. 463; Cole v. Pennell, 2 Rand. 174; Parker v. McCoy, 10 Gratt. 594; Ewing v. Ferguson, 33 Gratt. 548; Turner v. Barraud, 102. Va. 324, 331, 46 S. E. 318; note to Caperton v. Gregory, 11 Gratt. (Va. Rep. Anno.), at page 251 el seq., where a number of cases on the subject .are collected.”

■ Tbe omission to appoint a guardian ad litem for an infant defendant is reversible error in all cases, unless it appears tliat tbe judgment or decree is for the infant, and not to bis prejudice. Va. Code, 1904, sec. 3449; Langston v. Bassette, supra.

Without passing upon any other assignment, we are of opinion that for this initial error tbe judgment complained of must be reversed, and tbe case remanded for further proceedings to be bad therein in conformity with this opinion.

Reversed.