Ames v. Ames

Mr. Justice Phillips,

delivered the opinion of the Court:

Where the interests of the minors, and those of one assuming to act as next friend are hostile to each other, it is the duty of the court to appoint a guardian ad litem, and the minor should be represented by counsel distinct from those representing the hostile interests. The interests of Irene C. Ames as widow were hostile to the interests of the minor children of her deceased husband. Roodhouse v. Roodhouse, 132 Ill. 360. It is important, that none but suitable persons should be permitted to institute or defend suits on behalf of infants. Patterson v. Pullman et al., 104 Ill. 80.

Courts of equity have plenary jurisdiction over the persons and estates of infants, and will in the exercise of that jurisdiction, cause to be done whatever may be necessary to preserve their estates” and protect their interest. Cowls v. Cowls, 3 Gilm. 435; Grattan v. Grattan et al., 18 Ill. 167. It is the business of a court of chancery to see that no one stands between the infant and a just protection of her rights, and for this purpose the court may appoint a person to prosecute or defend for the infant. Holmes v. Field, 12 Ill. 424.

Section 5, of the act relating to practice in courts of chancery, provides, that suits in chancery may be commenced and prosecuted by infants by next friend or guardian ; and section 6 provides, it shall be lawful in any cause in equity for the court to appoint a guardian ad litem for any infant defendant, and compel such person to act, and he shall be allowed a reasonable sum for his charges as such guardian, to be fixed by the court and taxed as costs. Section 18, chapter on Guardians and Wards, contains the proviso to the effect, “that any suit may be commenced and prosecuted by any minor by his next friend, without any previous authority or appointment by the court, on such next friend entering into bond for costs and filing the same in the court in which such suit is instituted.” And the preceding portion of the section directs, that “nothing contained in this act shall impair or affect the power of any court to appoint or allow any person as next friend for a minor to commence, prosecute, or defend any suit in his behalf.”

In I. C. R. R. Co. v. Latimer, 128 Ill. 163, referring to section 18, it was held: “The power is here conferred to appoint a next friend to prosecute the suit as well as to commence it. The prosecution is designated as being distinct from the commencement of the suit. It follows, that a next friend might be appointed to prosecute after the suit was commenced. This must be kept in mind in determining the meaning of the language used in the proviso.” In Stunz et al. v. Stunz, 131 Ill. 210, it was held: “It is the duty of the guardian ad litem; when appointed, to examine into the case and determine what the rights of his wards are, and what defense their interest demands, and to make such defense as the exercise of care and prudence will dictate.” The bill filed by Irene C. Ames as next friend of the infant defendants, and in her own behalf, rendered her interests hostile to the infants’, “since what was given to one was taken from the other.” Roodhouse v. Roodhouse et al., supra. At the time of Holdom’s assignment to protect the interests of the minors that adverse interest existed, and not until the coming in of the master’s report did the self-appointed next friend withdraw as next friend, and after Holdom had rendered service as solicitor. The court had a right to appoint a person to prosecute or defend, and the appointment of counsel to represent and protect the interests of the minors was within the power, and was the exercise of a duty on the part of the court. The fact that other counsel represented the minors would not change the rule as to the power of the court, for if they were employed by the next friend, whose interest was adverse to theirs, the court would still be authorized to appoint a person to prosecute in their behalf. The position taken by counsel, that the court had no power to tax solicitor’s fees, as the suit was not amicable, does not apply. The power of the court to tax costs is not derived from the provisions of section 40, of the chapter entitled “Partition,” but from section 6 of the Chancery act. Neither does the fact, that the case in which the legal service was rendered was pending in this court on appeal, affect the validity of this order; the court had power to make the order, which was merely collateral to the question before this court on appeal. No objection is made as to the amount found by the master, and the decree of the Circuit Court will be affirmed.

^ ^ ■, Decree affirmed.