ARK.] BURKS V. CANTLEY. 347 BURKS V. CANTLEY. 4-3934 Opinion delivered SePtember 30, 1935. INFANTS—AUTHORITY OF GUARDIAN AD LITEM.—An infant defendant's guardian ad litem held authorized to waive the time for trial of a mortgage foreclosure suit, thereby merely expediting the trial, since otherwise plaintiff could have served notice . on the guardian and had the case set for trial-on the day on which it was tried. Appeal • from Mississippi Chancery Court, Osceola District ; Sam Williams, Chancellor on exchange ; affirmed. Kenneth Raynor and . Frank Berry, for appellant. W. E. Rhea, G. B. Segraves, Jr., and . G. B. Segraves, for appellee. MCHANEY, J. In April, 1923, the St. Louis Joint Stock Land Bank loaned J. W. Walker and his Wife, Selena J. Walker, the sum of $13,500 secured by a mor-t crao -e on two hundred and fifteen acres of farm land and payable in sixty-six seMi-annual installments. There was an acceleration clause in the mortgage which provided
348 Bumis v. CANTLES% [191 for the maturity of the whole debt in the event certain of the installments became delinquent. A foreclosure suit was filed on APril 2, 1932, three installments being delinquent at the time, and, J. W. Walker having died, his widow and heirs-at-law, of whom there were six, , were made Parties • defendant. At that time there remained due and-unpaid the Sum of $13401.27. A decree was en: tered November 22, 1932, foreclosing said mortgage. Appellant was at that time a minor, but was represented-by a guardian ad litem previously appointed by the court, and who on September 19 had filed an answer denying all the 'material allegations of the complaint. A previous decree had been rendered on September 19 and noted on the judge's docket but had not been entered, and a motion was made by appellee to set that decree aside because the judge's docket did not -show the appointment of an attorney ad lite*: Said decree was set aside, and the same guardian ad Mem was reappointed, and an answer was filed by him on November 22, 1932, and at the same time he waived time for trial. Service was had on the widow and all the heirs-at-law, all of whom were of age except appellant, and all of whom except appellant made default. The case was . submitted to the court on the complaint with 'its exhibits, siimmons showing service on all defendants, the report of the attorney ad litem and answer of the guardian ad litem, and the oral testimony of . Mr. A.' F. Barham, and appellee mas decreed a first lien .on the land for $13,866.48, with interest from September 19,. 1932, , at 8 per . . cent.. The decree was approved by coimsel repr6senting all parties, and the lands Were . adVertiSed aid Old by the cOmmissioner on Janu-ary 28, 1933, for • the sum of $12,510, appellee becoming the purchaser at -such sale, which was approved.and confirmed on February 20, 1933. The St. Louis Joint Stock Land Bank in .the meantime became insolvent, and appel-lee was appointed receiver. thereof. Appellant being a Minor at that.time has brought the case to this court for review by appeal within six months after becoming of age, under the provisions of § 2140, Crawford & Moses' Digest.
ARK.] BURKS. V. CANTLEY, 349 • Appellant's firSt contention for • a reVersal of the judgment is• that the Chancery court was not in session on November . 22, 1932, and that- the decree •is therefore void. 'The record', as originally prepared and presented to this 'Court, a.ppears to Sustain-this contention', -but an amendment to the transcript has 'been brought . up which shows that appellant is wrong. Said cOurt. was-in _regular session on- September 19, 1932, -and- on' that day it adjourned-until November 22, 1932.. 'The . clerk omitted the adjourning order but the record has been corrected by'nune prb tulle order, which shows that the court was regularly . adjourned -from 'September- 19- until Novem-ber 22, and that said coUrt was properly in-session on No-vember- 22; -which 'date was not in conflict . with the regu: lar terms fixedby law in other counties of . said court.' • It is next 'contended' that the guardian ad litem -had no power -to waiVe-the time for triakand that -the decree of foreclosure was prematurely entered. We -do not think there is any merit in this contention. The , guardian ad litem filed an , answer denying- all the material- allega- • tions of the cOmplaint. , ' :It was . not 'contended then and it is not suggested . now that appellant has any defenSe to the cause Of action. We held in Sisk v. Becker Roofing Co., 183 -Ark: 1.01, 34 'S. (2d) 1078; that,' unddr -the provisions : of § 1, 'of act . No. 37, .Acts of-1929; if -was IAA - necessary to wait ninety days-after the issues : are SOined in a chancery case to have a trial as provided in .§-1288; Crawford & Moses' Digest. That act provides : "That in all actions now pending or hereafter brought, upon application of any party, after issues joined, the court or chancellor in vacation may, on notice to 'of:posing counsel or guardian ad Wein, set The action for trial, or if the court finds that the proof has then been completed it may try the actiOn on• anY'earlie t date." And .as we said in SiSk •v: Becker Roofing- Co.,_.supra: "•The- act under' consideration was passed 'for theilurpOse of . eliminating delay, and making it possible . fOr either party • tO , gota, trial without waiting ninety dayiafter issue joined." .Appel-lee .could have served notice upon the guardian ad litem and had the case set for trial on the day it was tried. ThiS being true, we see no good reason why the guardian
350 [191 ad litem could not consent to a trial. As we said in Frazier v. Frazier,137 Ark. 57, 207 S. W. 215 : "It is the duty of the court to protect the interests of the infants, and see to it that their rights are not bargained away by those who represent them. Of course this does not prevent them from assenting to Such arrangements as are formal merely and which are only done to facilitate the decision of the case." The guardian ad litem agreed only that the case might be tried; and not that the decree that was rendered might -be rendered. His agreement was one that facilitated the decision of the case. In Stuart v. Barron, 148 Ark. 380, 230 S..W. 569, it was held that, under § 2190, Crawford & Moses' Digest, the attorneys of record in an equity case may agree that the case be submitted and a decree rendered in vacation even though minors are involved. If, as was held in said case, a guardian ad litem may consent that the case be submitted and a decree rendered in vacation, it would seem to follow necessarily that the guardian ad litem, could agree that the case be submitted, and a decree rendered *at a time when the court is in session. Since no substantial right of the infant has been invaded or bargained away by ihe agreement of the attorney ad litem that the case might be submitted and a decree rendered on November 22, appellant's contention- cannot be sustained. We find no error, and the decree is accordingly affirmed.
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