Welch v. Fox

91 N.E. 145, 205 Mass. 113, 1910 Mass. LEXIS 978

Opinion

Hammond, J.

The petitioner has mistaken his remedy. No citation of authorities is needed in support of the propositions, first, that a court may, and indeed should, appoint a guardian ad litem for a litigant in a case before it whenever by reason of minority or mental unsoundness one is required; and second, that whenever the question arises as to whether such a guardian is required the court has jurisdiction to consider and decide it. And this jurisdiction is not founded upon a previous notice to the litigant, but is a part of and incidental to its general jurisdiction over the case and the parties properly before the court. Denny v. Denny, 8 Allen, 311. If in the exercise of this jurisdiction the proceedings of the court are irregular or informal for want of a previous notice to the litigant to appear and show cause why such a guardian should not be appointed, or for any other cause, the remedy for the correction of any such error is not by a writ of prohibition but by appeal or exception, or in some cases by writ of certiorari. Prohibition lies not to correct errors of a tribunal acting within its jurisdiction, but to restrain it from acting in matters outside of its jurisdiction. “ The writ is not to be granted to restrain a tribunal which, having jurisdiction of a cause, is merely proceeding in it improperly; and it will not be granted if the court has jurisdiction.” Barker, J., in Hyde Park v. Wiggin, 157 Mass. 94, 99. See also that case and the cases therein cited, for further discussion of the office of this writ.

It becomes unnecessary to consider the other grounds of defense to the petition. The petition was rightly dismissed.

Exceptions overruled.