Harper v. Cilley

15 Ohio C.C. Dec. 770, 4 Ohio C.C. (n.s.) 55

• Court: Hamilton Circuit Court
• Decided: March 5, 1904
• Status: Published

Opinion

GIFFEN, J.

This ease was appealed to this court by the guardian ad litem of an infant, and the motion is made to dismiss the appeal for the reason that the guardian was not such a party to the suit as entitled him to take an appeal. Section 5003 Rev. Stat. provides that:

£ 1 The defense of an infant must be by a guardian for the suit, and may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge. ’ ’

In the ease of Long v. Mulford, 17 Ohio St. 484, 485, the first proposition of the syllabus is as follows:

“It is the duty of a guardian ad litem, to make for the infant a proper defense, and for this purpose to bring the rights of his ward under the consideration of the court for decision. ’ ’

At page 502, it is said that:

“The appointment of a guardian ad litem is not a mere matter of form. A suit against an infant cannot be prosecuted without such guardian; and the object of the requirement is to secure to the infant a proper defense.”

The ease in this court is the same as that in which the guardian was appointed, and the question whether the defense should be made for the infant cannot be determined by her, but must be determined by the guardian, and if, upon full consideration he deems it advisable to appeal the case to this court, it is his duty to do so.

The question has never been decided by our Supreme Court, but in other states under similar statutes it has been held that the guardian ad litem has the right to take an appeal from the judgment adverse to his ward. The case of Thomas v. Safe Deposit & Tr. Co. 73 Md. 451 [21 Atl. ; 23 Atl. Rep. 3], the fourth proposition of the syllabus is as follows:

“In contemplation of Sec. 24, Art. 5 of the code, regulating appeal ■ from courts of equity, a guardian ad litem may be a party to the suit, .and as such has the right of appeal on behalf of the infants, for the purpose of protecting or advancing their interests.”

In the case of Tyson v. Tyson, 68 N. W. Rep. 1015 [94 Wis. 225], the supreme court held that:

“A guardian ad litem, appointed for an infant defendant by the court in which the action is prosecuted, pursuant to Sec. 2613 Rev. Stat., may appeal from a judgment against the minor, without permission of court. ’'

It is claimed by counsel for the defendants that the guardian ad litem is not a party to the suit, and none but the party is entitled to take an appeal under Sec. 5226 Rev. Stat. While it is true that the guardian has no personal interest in the suit-, yet he takes the place of and represents the infant, who, though a party to the suit, has not the legal capacity to máke a defense.

The further claim is that the guardian ad litem who gave an undertaking for the appeal, is without authority to bind the estate of the infant, but assuming this to be true, he would nevertheless be liable individually upon the bond.

The motion will, therefore, be overruled.