Speck v. Speck

Bell, J.

1. It is the duty of a guardian ad litem to exercise diligence to protect the interests of his ward in all matters relating to the litigation, and he is liable to his ward for such damages as may result from any culpable omission or neglect on his part. Civil Code (1910), §§ 3047, 3057; 31 C. J. 1041.

2. A guardian ad litem acts at his peril in consenting for a verdict and judgment to be rendered against his ward without proof of the essential allegations of the petition, and if the allegations be in fact untrue, as.-is charged in this ease,.the ward may-elect to sue liis guardian for such damages as he thereby sustains (Short v. Mathis, 107 Ga. 807, 33 S. E. 694; Beavers v. Brewster, 62 Ga. 574, 578; Stunz v. Stunz, 131 Ill. 210, 23 N. E. 407; 14 R. C. L. 289 et seq,)-, irrespective of whether the verdict and judgment might have'been set-aside on jproper-motion on his behalf. Carroll v. Atlantic Steel Co., 151 Ga. 378 (106 S. E. 908, 14 A. L. R. 660).

Decided January 19, 1931. J. A. McFarland, for plaintiff in error. Oliver O. Hardin, Mann & Mann, Mitchell & Mitchell, contra.

3. Where the ward has sued his guardian upon-such a cause, it is no sufficient reply that the guardian’s misconduct was committed in a ease in which the ward’s interests' were represented by an executor (Gunn v. James, 120 Ga. 482, 48 S. E. 148; Miller v. Butler, 121 Ga. 758, 49 S. E. 754; Winn v. Walker, 147 Ga. 427 (2), 94 S. E. 468), where-the ward was himself made a party and the court was' thereby invested with jurisdiction to render judgment against him, the guardian being estopped to interpose such defense. Hines v. Mullins, 25 Ga. 696 (2); Griffin v. Collins, 122 Ga. 102 (49 S. E. 827); Gammage v. Perry, 29 Ga. App. 427 (2) (116 S. E. 126).

4. Even if the executor be also-liable as for a failure properly to represent the ward’s interests, this fact would not relieve the guardian from the consequences of his own neglect or misconduct. Compare Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (3) (126 S. E. 883).

5. A suit by a former ward against his .former guardian ad-litem, for damages resulting' from improper conduct on the part of the defendant while acting in such representative capacity in prior litigation to which the ward was a party involves no attack upon the judgment rendered in" the prior litigation, and is not affected by any principle inhibiting a collateral attack upon such judgment.

6. In this suit against a former guardian-' ad li-tem by his former ward to recover damages for the alleged neglect and misconduct of the guardián, in consenting, without evidence,1 to a judgment and decree affecting the remainder interest of the ward'in'certain lands, in litigation against an executor in which the ward was made á party, the petition set forth a cause of action; and the defendant’s general demurrer was therefore properly overruled. . ,

7. The order and judgment excepted to shows not that the court refused to pass upon the special demurrer, but that judgment thereon was reserved. The presumption is that the judge will pass upon the special demurrer, as should be done, before the trial. Seaboard Air-Line Ry. Co. v. Jolly, 160 Ga. 315 (127 S. E. 765).

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.