Scruggs v. Baugh

3 Tenn. App. 256, 1926 Tenn. App. LEXIS 99

• Court: Court of Appeals of Tennessee
• Decided: September 28, 1926
• Status: Published

Opinions

CROWNOVER, J.

The bill in this cause was filed to sell fifty acres of land in Williamson county for partition, and to have the title of a certain house and lot in the town of Franklin decreed to complainant. The bill alleged that Silas Baugh, Sr., originally owned both parcels of land, but in the year, 1897, he verbally gave the house and lot in Franklin to his son, Will II. Baugh, who immediately went into possession of same and erected a house and made other improvements, and remained in the open, notorious, continuous, adverse possession and occupancy of the same until Ms death in 1922, at which time he died leaving only one child, the complainant, and that she had since remained in the adverse possession and occupancy of said property:

That Silas Baugh, Sr., died about fifteen years ago, leaving a widow and many children, and grandchildren, who were made defendants to this suit, and among them was a son, Tom Baugh, who left home and went to the State of Oklahoma many years ago, and has not been heard from within the past ten or fifteen years; that his residence is unknown, and it is not known whether he is dead or alive, and that his heirs and their places of residence are unknown and cannot be ascertained after diligent inquiry. The bill made Tom Baugh and his unknown heirs parties defendants by publication, and E. W. Eggleston was appointed guardian ad litem to represent his unknown heirs. He filed a formal answer submitting their rights to the protection of the court.

Pro confessos were taken against all other defendants.

Proof was taken and the chancellor decreed that the heirs at law of Silas Baugh, Sr., were the owners as tenants in common of the fifty acre tract subject to the homestead rights of the widow, but that complainant, Eloise Scruggs, was the absolute owner of the house and lot situated in the town of Franklin.

From which decree the guardian ad litem prayed an appeal on a pauper’s oath, which was granted by the chancellor.

After an examination of the record we are satisfied that the chancellor was not authorized to grant an appeal on the pauper’s oath.

By the Acts of 1871, Chapter 111, Shannon’s Code, section 4929, guardians or guardians ad litem may in behalf of their wards who are of unsound mind, prosecute a suit by taking the oath, and this has been construed by our Supreme Court to apply to appeals on the oath by guardians ad litem for such persons of unsound mind. See, Alexander v. Morris, 109 Tenn., 724.

But this statute does not authorize guardians of guardians ad litem of minors to prosecute suits or appeals in forma pauperis in behalf of such wards. See, Shannon’s Code, section 4929, Notes 4 and 5, and authorities there cited; Musgrove v. Lusk, 5 Bax., 684.

Shannon’s Code, section 4930, Acts of 1889, Chapter 105, provides, —all persons acting as the next friend of infants may prosecute suits for such infants in forma pauperis, which of course, would authorize such persons to prosecute an appeal in forma pauperis. While the statute, in express terms, provides for only the prosecution of suits upon the pauper’s oath, yet the- provision in legal contemplation embraces all proceedings for the correction of errors, such as appeals, or writs of error, these being modes by which suits are prosecuted. See Alexander v. Morris, supra.

But, we are of the opinion that the aforesaid section 4930 of the Code does not authorize the prosecution of appeals by guardians or guardians ad litem for minors. While in a certain sense all guardians or guardians ad litem are next friends for minors and are considered such in many ways (see Gibson’s Suits in Chancery (2 Ed.), section 103 to 105) yet in strict legal contemplation they are entirely different personages. There is no statute authorizing guardians or guardians ad litem to prosecute suits or appeals in forma pauperis for infants. The law authorizing suits in forma pauperis confer a personal privilege, which the person upon whom such privilege is conferred alone can avail himself of. See McCoy v. Broderick, 3 Sneed, 203; Smith v. Railroad, 5 Pick., 665.

Hence, we hold that a guardian ad litem for minors cannot prosecute an appeal in forma pauperis.

There is also another reason why this guardian ad litem cannot appeal in forma pauperis, and that is that the statutes authorize the prosecution of suits and of appeals on the pauper’s oath “shall not enure to the benefit of any person who is not a citizen or resident of the State of Tennessee." See, Shannon’s Code, sec. 4928, and Act of 1901, Chapter 126.

It is incumbent on the parties to show affirmatively that they are citizens or residents of the State of Tennessee. See Shepard v. Thomas, 147 Tenn., 338; Gibson’s Suits in Chancery, (2 Ed.), sec. 182.

In this case the record shows that Tom Baugh was living in the State of Oklahoma when last heard of and it is further shown that the names and the residences of his heirs, if any, are unknown; hence, it is not shown that they are citizens or residents of Tennessee.

In this case the appeal was granted and the appellants were allowed ten days in which to file the pauper’s oath. The appeal was granted unconditionally. But it is our duty to make an order on the appellants to execute an appeal bond, hence, it is ordered that unless the guardian ad litem file in this court a good solvent appeal bond in the sum of $250, satisfactory to the clerk, within fifteen days, the appeal will be dismissed and the cost incident thereto taxed to appellants.