39 Ark.] NOVEMBER TERM, 1882. 235 Evans, as Guardian, etc., v. Davies, as Ad. EVANS AS GUARDIAN, ETC., V. DAVIES, AS AD. 1. PRACTICE: Revivor against infants on death of ancestor. A revivor against infant heirs of a deceased defendant must be by personal service upon them as required by the statute. An attorney can not enter their appearance and have a guardian ad litem appointed for them. There Can be no appointment of a guardian ad litem until after personal service upon them. 2. SAME : Answer of guardian ad Went. A guardian ad litem for an infant can admit nothing. He must deny and put in issue every material fact alleged. 3. SAME : Infants. .The rights of infant defendants can in no case be judicially af fected except upon proper issues and proof ; and, when plaintif fs, should not be, upon their own application by guardian or next friend, without a reference to the Master or the Chancellor's own examination to ascertain whether the thing asked be really for their benefit.
236 SUPREME COURT OF ARKANSAS, [39 Ark. Evans, as Guardian, etc., v. Davies, as Ad. APPEAL from Mississippi Circuit Court in Chancery. Hon. L. L. MACK, Circuit Judge. U. M. & G. B. Rose, and John C. Palmer, for appellants. 0. P. Lyles and Thomason & Edrington, for appellee. • EAKIN, J. This is a continuation of the case of Cannon,- V. Davies, reported in 33 Ark., p. 56. Upon the remand of the case, the death of defendant, Cannon, was suggested and "not denied," and, npon motion of his counsel in the cause, the suit was revived against his heirs by name, all of whom are described as infants under fourteen years of age, having no guardian. Their appear-. ance was entered by the counsel, and, upon his further motion, a guardian ad litem was appointed, who, by leave of court ; adopted the answer made by their ancestor while living, and the cause proceeded. It was on application of the plaintiff, in the nature of a supplemental complaint, transferred to the equity side, and ended in a decree against defendants, enjoining them from using, or claiming any benefit from a patent for the land in controversy, issued by the United States. It was error to proceed with the cause at all, until the heirs of Cannon had been brought in as required by law—that is by 2. Prac- tice: proper service. The provisions of the Code are Revivor against in-very plain, and this court has, tithe and again, fants on death of insisted that it is the duty of judges and Chan-ancestor. cellors, to permit no agreements of attothe y s or guardians ad litem to dispense with statutory. regulations for the protection of the rights of infants With regard to these, the courts should either refuse to move until they are complied with, or move, in the first instance, to compel compliance, without any disCussion of their policy.
39 Ark.] NOVEMBER TERM, 1882. 237 Evans, as Guardian, etc., v. Davies, as Ad. It may seem absurd to require personal service upon an infant in arms, but there may be a very wise policy in having intelligent children of twelve or thirteen years of age, made : acquainted with proceedings affecting their rights, and laws must be considered witb regard to their general effect In the case of Haley et al. v. Taylor, ante, 104, it was held, upon revivor of a suit against •him, that they must be brought in by like service as- in case of summons. Where the infant is under fourteen years of age the service must be upon him (or her), and upon the father or guardian ; or, if there be neither, upon the mother or any other person having the care or control of the infant, or with whom he lives. (Gantt's Digest, 4521.) No appointment of a guardian ad litem to defend for an- 2. Answer of guardian fant can be made, at all, until there be service ad litem. (ib., 4404), and such guardian, when duly appointed can admit nothing in his answer, the hiirden of proof of which would •otherwise be on the plaintiff or complainant, but must put in issue every material fact, which he may well do, as he is not required to answer on oath. (Ib., secs. 4578 and 4595.) In these respects the Code practice is much more rigid than the old practice in equity, and this . rigidity is justified by the shipwrecks of infants estates, which have so often resulted from the carelessness of friends and relatives. If this court should indulge itself in making exceptions, all would be again at sea. The rights of infants can in no case be judi- 3. Infants' rights pro-cially affected, except upon proper issues and teet,,1. proof, and upon statutory service, where they are defendants, and ought not to be upon their own application by next friend or guardian, without reference to the Master or the Chancellor's own careful examination, to ascertain whether or not the thing asked be really for the benefit of the infant Any remarks upon the merits of the controversy would
238 SUPREME COURT OF ARKANSAS, [39 Ark. be premature. Reverse the decree and remand the cause, with directions that the heirs of the original defendants be brought in, or that, upon plaintiff's failure to make them parties, the canse be dismissed as abated by the death of Cannon, and for such other and further proceedings as may consist with the principles and practice in law or equity.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.