MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
Defendant appeals from .a judgment quieting title in plaintiff to residence property consisting of a house and two town lots, which were inherited by plaintiff and his father, Harold Mitchell, from plaintiff’s mother. Plaintiff, then a minor, had sued by his guardian, C. H. Degenhart, claiming the entire
interest, and defendant had filed her answer and cross-complaint asserting title to an undivided one-half interest in the property as against plaintiff and Mary C. Mitchell, plaintiff’s stepmother, and seeking partition by sale of the property and division of the proceeds. Plaintiff’s one-half interest inherited from his mother is not in question; the interest in litigation is the other one-half, which was at the same time inherited by his father. Mary C. Mitchell was duly made a party defendant, was served with the cross-complaint, defaulted, and was decreed to have no interest in the property.
It was agreed by counsel at the trial that four deeds constituted all the written evidence of both parties’ claims to the undivided one-half interest from their common source; those deeds, all of which the uncontradicted statutory presumption or uncontradicted evidence, or both, show to have been executed and delivered at their respective dates, are as follows:
1. Harold Mitchell (plaintiff’s father) to Mary C. Mitchell (plaintiff’s stepmother), warranty deed of October 5, 1937, recorded October 7, 1937;
2. Mary C. Mitchell to Harold Mitchell, warranty deed, of October 5, 1937, recorded May 23, 1938;
3. Harold Mitchell to Madilon McDonald (defendant), warranty deed executed and recorded May 23, 1938;
4. Mary C. Mitchell to Merle Mitchell, otherwise known as Robert Joseph Mitchell (plaintiff), of Areata, California, quitclaim deed without warranties of title, executed and recorded on December 20, 1940.
Some novel and interesting questions are presented by the findings, conclusions and decree in this ease. However, our consideration of the merits upon the general facts and law of the case is prevented by an unusual circumstance; for it developed in the course of the plaintiff’s ease that the plaintiff, who was a minor when the suit was instituted in his name by the guardian and when defendant’s cross-complaint and the other pleadings were filed and served, had become of age before the trial. He had for several years resided in California, took
no part in the proceedings, and was not present at the trial. Defendant insisted throughout that the guardian’s authority to conduct the action depended upon the ward’s minority, and the guardian insisted throughout that the ward’s age was immaterial, and that his authority depended only upon the circumstance that his letters of guardianship had not been revoked.
At the outset defendant’s counsel objected to the guardian’s oral testimony that he was “the duly appointed, qualified and acting guardian” of plaintiff’s estate “for the reason it isn’t the best evidence and the question of whether he is guardian resolves itself into a question of the age of Robert Joseph Mitchell and in any event the record of his appointment and the proof of age would constitute the best evidence of whether he is such Guardian.”
The objection having been sustained, defendant’s counsel said: “On behalf of defendants I would waive mention of the file in the matter of the guardianship of Robert Joseph Mitchell if counsel would offer the letters of guardianship as issued coupled with proof of age preceding the preliminary papers and as far as we are concerned we need not encumber the record with such documents. I do not wish to waive my objection or requirement as to proof of age, it being admitted here both by the pleadings and by statements of counsel that the guardianship of Robert Joseph Mitchell is a guardianship arising by virtue and because he was a minor and therefore, I think it is inherently a necessary element of the question of the present existence of this guardianship to establish the age.”
The trial judge replied: “All that would be necessary would be the letters of guardianship and some testimony from the Clerk of the Court it is in full force and effect.”
The clerk of court was then called as a witness and over defendant’s objection testified that the guardian’s letters had never been revoked, which defendant had eliminated from issue, as shown above. The objection called the court’s attention to the more fundamental element of that authority, being as follows: “To which we object, if the Court please, on the ground
it becomes immaterial inquiry, tbe question of tbe existence of the Guardianship in this matter being dependent upon or answered by determination of the age of Robert Joseph Mitchell who was the minor, our contention being as to age the record would [show?] the guardianship terminated ipso facto of its own accord when the minor became an adult. It matters not what the record of the court showed, and it would not continue the guardianship. If and when the minor reached twenty-one the guardianship concluded of its own power.”
Subsequently both the guardian and plaintiff’s father testified that the plaintiff had become twenty-one years of age on September 20, 1941, twenty days before trial.
Near the end of the defendant’s case the following objection was made on her behalf: “I want my objections to stand in connection with the claim of the defendants that Degenhart is not now a party to this action in any sense. His guardianship having terminated of its own force and effect ipso facto when the minor became twenty-one years of age.”
The objection having been summarily overruled, it was again made at the close of all the evidence as follows: ‘ ‘ The evidence being concluded I move that plaintiff’s case be dismissed for the reason that the guardianship is in fact actually terminated and C. H. Degenhart is not actually a guardian for the reason that Robert Joseph Mitchell ® * * is an adult person now at the time of the trial of this action * * The court then stated that the motion and others which were coupled with it would be taken under advisement. They were never formally ruled upon, but must be considered to have been denied, since the trial court proceeded to adjudicate the rights of the parties.
The objection as made was (1) that upon the ward’s majority the guardian’s authority was automatically terminated and (2) that the guardian was no longer the party in interest entitled to sue under section 9067, Revised Codes, which provides that with certain exceptions not here material “every action must be prosecuted in the name of the real party in. interest.”
The second part of the objection was not good, for the suit was already being prosecuted in the name of the real party in interest; the plaintiff was “Robert Joseph Mitchell, * * * a minor, by his Guardian, C. H. Degenhart.” Our statutes provide:
“A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same.” (Sec. 5687, Revised Codes.)
“When an infant
or an insane or incompetent person
is a party,
he must appear either by his general guardian or by a guardian
ad litem
appointed by the court in which the action is pending, in each case. A guardian
ad litem
may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, insane, or incompetent person in the action or proceeding, notwithstanding he may have a general guardian and may have appeared by him. ’ ’ (Sec. 9071, Rev. Codes.)
“Every guardian * * * must appear for and represent his ward in all legal suits and proceedings, unless another person be appointed for that purpose.” (Sec. 10418, Rev. Codes.)
In other words, as properly disclosed by the title in this action, the ward has always been the party plaintiff. He has merely appeared by his guardian, who was by statute authorized to conduct the proceedings for him and in his name while as a minor he was unable to conduct them for himself.
Referring to section 372 of the California Code of Civil Procedure, which is identical with our section 9071, supra, the Supreme Court of that state said in
Emeric
v.
Alvarado,
64 Cal. 529, 2 Pac. 418, at 460: “The guardian is to appear for them [the minor wards], and is no more a party to the action than the attorney who appears' in an action for one who has attained his majority is a party to the suit in which he enters his appearance. ’ ’
While the positions of guardian and attorney are not in all respects analogous they are so in the circumstance that neither
is the party but merely represents the true party in interest. Therefore the second part of the objection — that the guardian
is no longer a party in interest
— is not good; but the first part is good — that the guardian
is no longer entitled to represent the real party in interest
— and that the party is therefore no longer represented in the suit, unless the attorney selected by the guardian to perform the guardian’s duty to represent the plaintiff, now represents the plaintiff directly on his own account.
The suit being that of the ward, it does not abate upon the guardian’s death or the termination of his authority. (28 C. J. 1261, see. 448.)
While the courts of some states under their particular statutes have held that there should be a substitution of parties when the guardianship is terminated, that procedure is not applicable under our statutes, since the guardian has never been a party; it would therefore seem to be the proper course merely to eliminate the former guardian from the case, both nominally and actually.
Section 10407 provides: “Every guardian appointed shall have the custody and care of the education of the minor, and the care and management of his estate, until such minor arrives at the age of majority or marries, or until the guardian is legally discharged.”
The final phrase of that section does not mean that the guardian’s authority continues, in spite of the ward’s majority, until his legal discharge. The point was not actually ruled upon in
Berkin
v.
Marsh,
18 Mont. 152, 44 Pac. 528, 56 Am. St. Rep. 565, in which the question was the termination of a guardianship by the death of the ward, nor in
In re Scheuer’s Estate,
31 Mont. 606, 79 Pac. 244, which related to the estate of a mentally incompetent ward; but in those cases this court referred to the question for analogy and cited with approval from the opinion in
Probate Judge
v.
Stevenson,
55 Mich. 320, 21 N. W. 348, and
Curtis
v.
Devoe,
121 Cal. 468, 53 Pac. 936, in which it was held that such phrase was not intended to prolong the guardian’s
control of the person or estate of the minor ward beyond the latter’s minority.
It has been held also in
Matter of Allgier,
65 Cal. 228, 3 Pac. 849;
Estate of Clary,
112 Cal. 292, 44 Pac. 569, and
In re Estate of Kincaid,
120 Cal. 203, 52 Pac. 492, that the guardian’s authority ceases when the ward attains his majority. We agree with the California court that the statute in question does not change the ordinary rule, which is to that effect. (28 C. J. 1096, sec. 110; 25 Am. Jur. 37, sec. 53.)
It might even be questioned whether a statute could constitutionally change the rule; for it would deny to those who had had guardians during their minority, the full control of their own affairs automatically accruing to all others upon attaining their majority, including the control of their own litigation under section 8988, infra. The question would be the reasonableness of such special classification; but it is not presented here, since the statute expresses no intent to make such discrimination. This court in
In re Scheiber’s Estate,
supra, made the following statement which would seem as applicable to a minor coming of age as to a mental incompetent judicially found restored to competency: “It would be an intolerable imposition upon a person
sui juris
to compel him to submit to the control of a guardian either of his person or property, and such an imposition was not intended by the lawmaking authority * * Obviously he is entitled, on coming of age, to elect whether and how to proceed with the action, without the interference of his former guardian.
It follows that upon the ward’s attaining majority the power of the guardian to administer his affairs or to conduct lawsuits on his behalf automatically ceases. While it is the ward who has always been the party in interest and therefore the party plaintiff, the attorney representing him during his minority is necessarily selected by the guardian and looks to the latter for his authority and also for his compensation
(McKee
v.
Hunt,
152 Cal. 526, 77 Pac. 1103), the allowance of which, .as a necessary expense of the guardianship, must be procured
from the court. (Sees. 10285 and 10463, Rev. Codes; 25 Am. Jur. 63, sec. 97; 28 C. J. 1236, sec. 409.)
While in the conduct of the suit, the attorney actually represents the interests of the ward, his appointment is solely to implement the guardian’s authority to represent those interests, and it is not apparent how his authority to conduct the proceedings can continue beyond the authority of the guardian by whom he was appointed, unless after the change his authority is renewed.
The situation is not that of the usual employment of an attorney, which ordinarily continues until the completion of the proceeding for which he is employed, unless otherwise terminated by law or the act of himself or his client. There is no such continuity here, for a definite break occurred when the ward became of age. Up to that time the guardian had the right to conduct the litigation, including’ the selection of an attorney, without any control by the ward. After that time the former ward had that right, including the selection of his attorney, without any control by the former guardian.
The guardian’s only authority to employ an attorney for litigation is to further his own personal duty to conduct the ward’s litigation during the minority, and he could not legally have employed an attorney to conduct the litigation any longer. For our statute (see. 10285) expressly limits the allowance of attorneys’ fees to those “for conducting the necessary proceedings [in guardianship] and for conducting necessary actions in courts,” which can only mean those
necessary
during the guardianship. Furthermore, except as especially authorized by statute and approved by the court, the guardian has no power to make contracts for his ward. (28 C. J. 1165, sec. 281; 25 Am. Jur. 64, sec. 98.) We find no statute authorizing him to contract for attorney’s services to be performed after the ward’s majority, and no court order purporting to approve such contract. The attorney’s employment by the guardian could only be in furtherance of the latter’s statutory authority
to conduct litigation for tbe ward, which authority has come to an end.
It is significant that while our statute (see. 8974) expressly continues the attorney’s authority after a client’s death, it does not purport to continue his authority beyond the termination of the guardian’s power by the ward’s majority. The constitutional provision that property may not be taken without due process of law means that the owner is entitled to his day in court, and our statute (sec. 8988, Bev. Codes) provides:
“A
party to a civil action, who is of full age, may prosecute or defend the same in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs.” That right necessarily includes, of course, the right to elect whether to proceed with a suit theretofore properly started on his behalf, and if so, the right to select the attorney by whom he is to be represented. Certainly the guardian had neither the intention nor the power to deprive him of that right automatically accruing upon his majority.
Section 8994, Bevised Codes, provides: ‘ ‘ The court or judge, on motion of either party, may require the attorney of the adverse party to produce and prove the authority under which he appears, and may stay all proceedings until such is shown, #■ # *
>’
If such demand had been made at the trial in this case, certainly the attorney for the plaintiff could not, by producing authorization from the guardian, have proved his continuing authority to conduct the litigation after the termination of the guardian’s right to conduct it. It is clear that upon plaintiff’s attainment of his majority he was no longer authoritatively represented, either by the guardian, whose authority to represent him had expired, or by the attorney acting solely under employment by the guardian to implement that authority.
From that time the plaintiff was no more represented under the original employment of counsel by the guardian, than if his guardian had died, had resigned, or had been removed. There is no question that upon a change of guardians the new guardian,
or, upon the plaintiff’s majority, the plaintiff, becomes entitled to employ his own attorney. There is no doubt, also, that where the attorney appointed by the guardian, or the first guardian, continues to act as such, the presumption will ordinarily obtain that he has been reemployed by the new guardian or by the ward. But obviously that presumption cannot apply where the attorney, by insisting upon the continuing authority of the guardian (or of the first guardian where another has been appointed), necessarily denies the authority of the ward (or of the new guardian). In either case the ward, or the former ward, would still be the party, as before, but he would have no representation in the suit, and the proceedings should be suspended until the defect of representation was remedied.
In
Waring
v.
Crane, 2
Paige, N. Y., 79, 21 Am. Dec. 70, where the ward came of age during the proceedings, he was held to be entitled to elect whether to proceed, and was found under the facts to have made such election by taking personal control of the matter, so as to become bound by the result. No such facts appear in this case.
In
Shuttlesworth
v.
Hughey,
6 Rich., S. C., 329, 60 Am. Dec. 130, the court said: “ In an action at law, where an infant is the plaintiff, the process is generally sued out in his name, but he cannot prosecute it in person. For that purpose a
prochein ami
or guardian, must be admitted by the Court to prosecute it for him and to protect his rights. * * * If an infant plaintiff, pending the suit, shall attain full age, he is generally permitted to stop the proceedings, whether he is sole or co-plaintiff with others. The action does not abate when he is of age, and he can elect, whether he will proceed or not. ’ ’ After coming of age plaintiff had elected to proceed by appearing, obtaining leave to file, and filing an amended complaint in her own name. No such facts .appear in this ease.
The right of a person
sui juris
to manage his own affairs, including the right to control his own litigation and select his own attorney, is so well settled that cases are few in which it has been questioned, even in the absence of statutory pro
visions like section 8988, supra. Here, having come of age, plaintiff was entitled under that section to elect personally whether to prosecute his action, and if so whether to prosecute it in person or by attorney personally designated by him. Knowing that his own authority was thus about to expire, it was clearly the guardian’s duty to make to his ward the necessary disclosure and explanation to make the transition effective. That he did so and that the plaintiff himself took over the control, either personally or by attorney, is entirely negatived by the insistence of the guardian and attorney that the guardian, and therefore the attorney under his authority, were still authorized to conduct and were still conducting the litigation under that authority.
It is immaterial whether this precise objection was made by defendant. For the court has inherent power to investigate counsel’s authority, however the question has been brought to its notice. (5 Am. Jur. 309, sec. 82; 7 C. L. S., page 881, Attorney and Client, sec. 74;
Missoula Belt Line R. Co.
v.
Smith,
58 Mont. 432, 193 Pac. 529, 531.) In the above case the defendants had filed a motion asking the court to require the plaintiff’s attorneys to produce and prove their authority to appear, and to order a stay until such authority should be produced; they also filed a motion asking that the action be dismissed, on the ground that it had not been properly brought, in that it had not been authorized by anyone having the right to do so. Bach motion recited that the defendants appeared specially for that purpose only. Twenty days having expired after service of summons before the motions were set for hearing, defendants’ default was entered and default judgment rendered.
Subsequently defendants’ motion to set aside the default and judgment was made and granted, and plaintiff appealed. This court affirmed the trial court’s action calling attention to the fact that under subdivision 1 of section 6719, Revised Codes of 1907 (now sec. 9322, Rev. Codes 1935) a default judgment could be had “if the defendant fail to answer the complaint or
to challenge the jurisdiction of the court,
as follows: * * *
if no
answer, demurrer,
motion, or special appearance, coupled with a motion”
has been filed in time, “or on [no] motion * * * to challenge the jurisdiction of the court, has been made and filed
The court said:
“* * * If it is shown that the attorney has no authority to represent the party for whom he assumes to act, he will not be permitted to act further, and if he is prosecuting the action without the permission of the ostensible plaintiff, whom he professes to represent, the action will be dismissed. Even in the absence of such a statute the court has the inherent power, either on its own motion or on motion of a party to the action, to require an attorney to produce evidence of his authority whenever there is reasonable ground to apprehend that he is proceeding to act without authority of the party he assumes to represent. * * *
“The question arises, then: Does the motion challenge the jurisdiction of the court? The term ‘jurisdiction, as used in the statute, is the power to hear and determine the particular case. This power is called into activity by the commencement of the action by a party who invokes it, to enforce a claim against the defendant, or to redress or prevent a.wrong done or being done by him. The action is commenced by the filing of a complaint. This must be the voluntary act of the plaintiff. He thus submits his cause for adjudication. No one else can do this for him, unless he is a minor, or an incompetent ward, under the control of a guardian. Even then, in contemplation of law, the action is that of the ward. When, therefore, it is shown that an action has been brought by another as an attorney in the name of the plaintiff without authority, the power of the court to proceed to adjudication of it ceases. The defendant cannot lawfully be held to answer or make defense. He is at liberty to defend an action brought against him if he chooses, but may abstain from making any defense. He is entitled to notice by service of process, but cannot be brought into court
.and required to defend against his will. Much less may he be lawfully brought into court to defend an action by one who is not the owner of the cause of action brought against him. By their motion defendants sought to advise the court that it had not properly acquired jurisdiction of the cause of action alleged in the complaint, and thus that it was without power to proceed to judgment. In other words, they sought to uproot the action entirely and summarily end it. • In this sense the motion ■ challenged the jurisdiction, within the meaning of the statute. This conclusion requires an affirmative answer to the question .submitted by counsel.”
In the instant case the question is not of counsel’s original authority to bring the action, but of his continuing authority to proceed with it after the termination of the guardianship had been shown to the court. Consequently the question is not of the court’s jurisdiction over the action or over the plaintiff, that jurisdiction having been conferred while the guardian and counsel had the authority to do so, but of its jurisdiction to proceed with the trial, where the authority of the guardian and ■ of counsel selected by him has expired but they still assert that .authority, thus negativing other authorization.
The situation here being, not an absence of authority to initiate the action, but a termination of that authority by force of law, the proper procedure is not the dismissal of the action, but the stay of proceedings until further authority is shown for its maintenance.
It is not a mere technicality to insist that a person’s rights may not be litigated without his authority, for that is an inherent right guaranteed by the due process clauses of federal (Fifth Amendment; Fourteenth Amendment, sec. 1) and state Constitutions (Art. Ill, sec. 27), and by. Code section 8988, supra. It is no answer to say that a volunteer may profess to represent him, in the expectation that if he is successful the party in interest may ratify his action and if he is unsuccessful the party in interest may disavow it; for his interests may be irreparably . damaged during the unauthorized suit. Furthermore, the
opposing party is entitled to know that the litigation is actually authorized by the party in interest, so as to bind that party regardless of the result; and that is the reason for section 8994, Revised Codes, as this court pointed out in
Missoula Belt Line R. Co.
v.
Smith,
supra.
It is our conclusion, therefore, that upon proof of the plaintiff’s majority and the resultant termination of the guardian’s authority, and upon the above facts which removed any possible presumption that counsel had direct authorization from plaintiff, the court should have stayed all proceedings until such authorization was shown or until it was otherwise shown that the plaintiff had assumed control of the litigation, either personally or by counsel authorized by him. This is not intended as a criticism of counsel, for there is no question of his good faith, and the point seems never to have been directly determined by this or any other court in a similar situation, so far as we have been able to find. But it seems clear that under the circumstances neither the trial court nor this court can have any jurisdiction to adjudicate the rights of the plaintiff, either beneficially or adversely to him until he is shown to have authorized the maintenance of the suit after his majority.
However, we now meet the objection that if counsel’s authority to represent plaintiff had terminated before trial, as above decided, the notice of appeal, which was served upon him for plaintiff, did not confer jurisdiction upon this court to consider the appeal. Section 9733, Revised Codes, provides that the appeal is taken by filing the notice of appeal with the clerk of the trial court, and by service “on the adverse party, or his attorney.” Section 9783, Revised Codes, provides that service shall be made upon the attorney if the party has one; otherwise, of course, it must be made upon the party; but the same section provides that if a party who has appeared resides out of the state and has no attorney in the action, service may be made on the clerk for him. The matter is not a mere technicality, but is jurisdictional; we must therefore conclude that the objection is good, and that as plaintiff no longer had an attorney in the
action, the service upon the former attorney was void, and the appeal must be dismissed. Accordingly it is so ordered.
Associate Justices Erickson and Anderson concur.