Womble v. Trice's Guardian

Opinion op the court by

JUDGE HOBSON —

Reversing.

On March 11, 1899, appellee, T. M. Baker, as guardian of Bettie Trice (now Womble), filed this suit against her in the Ballard circuit court, under section 489 of the Civil ■Code of Practice, for a sale of certain real estate owned by her and the reinvestment of the proceeds in other property. On April 22d the court, on the pleadings and proof, ordered a sale of the property, which was duly made, and the sale was subsequently confirmed. On March 19, 1901, this appeal was prosecuted by the ward; she having in the meantime married. The only party appellee is the guardian, T. M. Raker, and the only question 'before us is the regularity of the proceeding.

The allegation of the petition upon which the sale is ordered is in these words: “Now plaintiff states that it will be greatly to the interest of his ward that the above property be sold, and the proceeds thereof be reinvested in other property, or the money loaned out on interest.” .Section 492, subsec. 4, provides: “Facts must be stated in the petition and must be proved showing that the sale will benefit the defendant.” The purpose of this provision is to require the pleader to allege in his petition more than his mere conclusions, and to state the facts on which these conclusions are based. The petition in this case ■ does not comply with the statute. Subsection 2 of section, 492 requires that the title papers, or copies of them, un•der which the property is held, must be filed with the. petition. No title papers were filed with the petition. At the time the petition was filed, and when the summons was issued, the clerk made an order appointing a guardian ,ad litem for the infant. The ward was sixteen years of age. By section 52, the clerk may appoint a guardian ad litem in cases of this character when there is no one on whom the process can be served, to the end that the summons may be executed on him; but this section only applies when the infant is under age of fourteen years. By section 38, no appo'ntment .of a guardian ad litem shall be made until the defendant is summoned. The appointment by the clerk was therefore premature and without authority. By section 36, subsec. 3, no judgment shall be rendered against an infant until his guardian or guardian ad litem shall have made defense or filed a report stating' that, after a careful examination of the case, he is unable-to make defense. The report of the guardian ad litem is-not sufficient, under this statute. "It is in these words: “Having been appointed guardian ad litem for the infant, Bettie Trice, in this action, will say I have no defense to make in this action, but only ask the court to protect the rights of said infant according to law in the disposition of the proceeds from the sale of realty embraced in plaintiff’s petition.” The requirement that the guardian ad litem must file a report stating- that, after a careful examination of the case, he is unable to make defense, is intended t'o secure from him a careful examination of the record; and the report filed in this case fails to show that the guardian ad litem had discharged this duty.

The depositions filed in the record upon which the judgment was rendered were taken upon.cross-examination by the guardian ad litem. Section 574 of the Code provides: '“If all of the parties against whom a deposition is to be read have been constructively summoned and have not appeared, or be defendants and under disability, other than coverture or infancy and coverture combined, the deposition must be taken upon interrogatories, except in actions and proceedings’ for divorce and alimony and the custody of children when involved in such a suit.”

The section 'peremptorily requires all depositions to be taken upon interrogatories in two classes of cases: (1) Where all of the parties against whom they are to be read have been constructively summoned and have not appeared; (2) where all of the parties against whom they are to be read are defendants, and under disability other than coverture, or infancy and coverture combined. It applies to all actions except those for divorce and alimony and the custody of children, when involved in such suits. The only defendant to this action was the infant, Bettie Trice. She was the only party against whom the depositions were to be read, and was under disability other than coverture, or infancy and coverture combined. The proof should therefore have been taken upon interrogatories. When -so taken,'neither party is permitted to be present at the examination in person or by attorney, and the clerk, if no cross interrogatories are filed, is required to file certain questions to be answered by the witness. The purpose of the statute seems to be to protect infants and persons constructively summoned in the examination of the witnesses.

Judgment reversed, and cause remanded for further proceedings consistent with this opinion.