Webb v. Webb's Guardian

Opinion of the Court by

Chief Justice Settle—

Setting aside order dismissing appeal.

By this appeal tbe appellants, Oliver Webb, Maggie Webb, Mary Webb, Troy Webb, Londa Webb and Willie Webb, attempted to bring to this court for review two judgments of the Floyd circuit court rendered in an action brought by their mother, Lizzie Webb, as their statutory guardian, against them and certain other defendants to obtain a decretal sale of certain lands described in the petition, in which they owned an undivided one-sixth interest each. By the first of these judgments, the lands were ordered to be sold; and, by the second, the report of the sale thereof made by thé master commissioner of the Floyd circuit court was confirmed. At the time of the institution of the action and when their interests in. the lands in question were sold, and also at the time the report of sale was confirmed, the appellants, and each of them, were infants under twenty-one years of age. The appeal was taken by the filing of a transcript of .the record in the office of the clerk of this court and the issuing of a summons against each of the appellees more than two years after the rendition of each of the judgments, and the appeal was granted by the clerk of this court-This appeal was taken by the appellants in their own right and by their guardian ad litem, W. W. Williams.

It being made to appear -in this court that the appellant, Oliver Webb, had arrived at the age of twenty-one years more than a year before the taking of the appeal, on motion of the appellees, the appeal was dismissed as to him. Subsequently, on the further motion of appellees the appeal was dismissed as to the other appellants, upon authority furnished by the recent case of Parks, By, et al. v. Barnes, 173 Ky. 589, in which we held that the guardian ad litem of an infant defendant can not take an appeal from a judgment against the infant after the expiration of two years from the rendition of the judgment. The case is again before us on a motion made by the appellants, Maggie Webb, now Maggie Allen, Mary Webb, now Mary Minnix, Troy Webb, Londa Webb and Willie Wehb, to set aside the order dismissing the apphal as to them; also' to permit the filing of an amended statement showing the right of Troy Webb, Londa Webb and Willie Webb to maintain the appeal in their own behalf, and by W. W. Williams as their next friend. Accompanying the amended statement referred to is an affidavit of two of the appellants, Mary Minnix and Maggie Allen, showing that both are married, that they are twins and became twenty-one years of age January 8,1917.

They ask, in the affidavit, that they be allowed to prosecnte this appeal in their own name as they are no longer infants and a year has not elapsed since they became twenty-one years of age.

Laying aside for the present consideration of the question whether the infants may appeal by their next friend-, we deem it only necessary to say that there can be no doubt of the right of Mary Minnix and Maggie Allen, the two adults, to prosecute the appeal in their own names. Hence, it is manifest that the motion to be permitted to file the amended statement and to set aside the order dismissing the appeal must, as to them, be sustained.

It next becomes necessary to determine whether the motion should be sustained as to the infant appellants, Londa Webb, Troy Webb, and Willie Webb. We find that in the original statement filed with the transcript of the record in the office of the clerk of this court, the infants, Londa Webb, Troy Webb, and Willie Webb, as well as their guardian ad litem and sisters, Maggie and Mary, now adults, are named as and made appellants in the appeal. In Parks, By, et al. v. Barnes, supra, in holding that the guardian ad litem cannot appeal after two years, we said:

“The infant is not precluded from appealing from a judgment against him before his arrival at his majority, but he may appeal at any time before attaining his majority. Moss v. Hall, 79 Ky. 40; Staggenberg v. Bailey, 26 R. 188; Riley v. Reed, 13 Bush 412; Newland v. Gentry, etc., 18 B. Mon. 666. Hence, it appears that an infant defendant has a right of appeal from a judgment against him, at any time, from its rendition until the expiration of one year from his majority. After arriving at twenty-one years of age, infants- must appeal in their own names, and not by any representatives, but before that time they can and must do so- by a statutory guardian, guardian ad litem or next friend. ’ ’

Manifestly, two conclusions are expressed in the opinion, that is: (1) That an infant may appeal from a judgment at any time from its rendition until after the expiration of a year from the attainment of his majority. (2) That at any time after the rendition of the judgment he may appeal by his statutory guardian or next friend. In Moss, etc., v. Hall, 79 Ky. 40, we also held that an infant may appeal from a judgment of tbe circuit court to the Court of Appeals at any time during bis minority, altbougb two years bave elapsed since tbe judgment; and that having tbe right of appeal within one year after bis majority, be may exercise the right at any time after tbe rendition of tbe judgment until tbe time mentioned. Newman’s Pleading and Practice, section 680.

Tbe appeal could not be taken in this ease by the statutory guardian of tbe infants as she is a party appellee. Therefore, they must do so by their next friend; and, as by tbe original statement filed with tbe transcript in the office of tbe clerk of this court, tbe infants are made parties appellant in their own right as well as by their guardian ad litem, tbe fact that tbe latter cannot act with them in prosecuting tbe appeal, if not taken until tbe expiration of two years after the rendition of tbe judgment, should not deprive them of that right. Tbe right of appeal until one year after tbe majority is, by section 745 of tbe code, only given tbe infants who were defendants in tbe action. And, as well argued by counsel for appellants, as such infants cannot be represented in tbe circuit court by a next friend, and must defend in that court by a statutory guardian, or guardian ad litem, to bold that a guardian ad litem loses bis right to appeal after two years, and that thereafter an appeal cannot be prosecuted for the infants by their next friend, is to put the infants at tbe mercy of their guardian ad litem. And to say that altbougb they bave the right of appeal, they cannot appeal, unless their guardian ad litem sees fit toi sue out tbe appeal in two years, would offer a premium for fraud. In other words, under tbe circumstances appearing in this case tbe right of appeal after two years from the rendition of tbe judgment and before reaching their majority, would be entirely lost to tbe infant appellants, if they are not permitted'to prosecute it by their next friend. To so bold would put tbe infants at tbe mercy of those who would despoil them.,

No good reason is perceived for refusing tbe appellants permission to file tbe amended statement offered by them, tbe purpose of which is to correct a defective statement originally entered upon tbe transcript when filed in tbe office of tbe clerk of tbe Court of Appeals, and to sub-, stitute for the person named therein as guardian ad litem of tbe infants the name of their next friend. It has long been tbe practice in this court when a transcript has been in good faith filed, and is defective or contains only a part of the proceedings in the court below, to permit the filing of a supplemental record at any time before submission. And what is the filing of an amended statement such as is here offered by appellants, but a mere method of correcting a defect appearing in the record, which did not occur in the court below,, but was made in this court.

As the courts are ever watchful of the rights of infants, amendments in their favor will be liberally allowed ; and the granting of what is here asked for appellants is necessary for their protection, and will neither result in injustice to the appellees nor violence to the rules of procedure regulating appeals to this court. The present appeal by the infants will be a complete bar to any appeal after arriving at age, and the law does not contemplate or require that such a construction should be given the provisions of the code regulating appeals, as would postpone the settlement not only of the rights oi the infants, but of-those litigating with them, for years after the judgment has been rendered, when the infants appear in court by those entitled to be heard for them, asking a final adjudication so important to the interest of all concerned.

For the reasons indicated, the motion of the appellants to set aside the order dismissing the appeal, and to be permitted to file the amended statement referred to, is sustained, the order of dismissal set aside, and tbe infant appellants allowed to prosecute the appeal by the next friend named in the amended statement.