Conway v. Clark

• Decision Date: 08 February 1912
• Citation: 177 Ala. 99,58 So. 441
• Parties: CONWAY v. CLARK ET AL.
• Court: Alabama Supreme Court

58 So. 441

177 Ala. 99

CONWAY v. CLARK ET AL.

Supreme Court of Alabama

February 8, 1912

Rehearing Denied May 1, 1912.

Appeal from Clay County Court; E. J. Garrison, Judge.

Action by Mrs. W. F. Conway, as guardian of Docie Carpenter, against T. E. Clark and others in ejectment and assumpsit. From a judgment for defendants, plaintiff appeals. Affirmed.

See also, 55 So. 117.

It appears that plaintiff offered in evidence a mortgage executed by the defendant on October 15, 1907, to secure two notes aggregating $188.12. The mortgage was given to secure the lands sued for and the notes which were made the basis of the second count in assumpsit. Plaintiff offered the notes and mortgages which were past due when the suit was brought and also evidence as to a reasonable attorney's fee as provided in the notes and mortgage. The defendants introduced a bill in chancery filed by them against Mrs. Conway as an individual, and against Docie Carpenter, and summons showing an execution by leaving a copy with Mrs. Conway and Docie Carpenter. The bill sought to have the mortgage, given by these defendants to Docie Carpenter, set aside and annulled because procured by fraud, but no effort was made to have the notes canceled. It does not appear from the file that a guardian was appointed for the minor Carpenter or that any answer was filed, and it does not appear that any evidence was taken or not, but it appears that a decree pro confesso was taken, and on that decree a final judgment was rendered declaring that the respondents had no interest in or title to or incumbrance upon the lands involved. The respondents were Mrs. Conway and Docie Carpenter. The defendants objected to the introduction of this chancery file.

Riddle Ellis, Riddle & Pruett, of Goodwater, for appellant.

R. G Rowland, of Ashland, for appellees.

ANDERSON J.

This complaint contains a count in ejectment as well as counts in assumpsit, and, whether or not such actions can be joined, we are not called upon to determine, for the reason that, while the demurrer was for misjoinder, the record fails to disclose a ruling upon same.

Rules 20 and 23, Code of 1907, pp. 1533-1535, provide for the appointment of a guardian ad litem for a minor who is sued in chancery, and a decree rendered against said minor either pro confesso or upon the hearing in violation of the rule is irregular and will be reversed upon appeal. Griffith v. Ventress, 91 Ala. 366, 8 So. 312, 11 L. R. A. 193, 24 Am. St. Rep. 918; Woods v. Transportation Co., 107 Ala. 364, 18 So. 108; Wells v. Mortgage Co., 109 Ala. 430, 20 So. 136; Estes v. Bridgeport, 114 Ala. 221, 21 So. 512. And it may be that a decree so rendered or rendered by the consent of a guardian ad litem, if one has been appointed, would be subject to a bill of review within the proper time. Hooper v. Hardie, 80 Ala. 114; Mitchel v. Hardie, 84 Ala. 349, 4 So. 182.

The court had jurisdiction of the person, as the record shows service on the minor and her guardian as required by rule 20 of the Code. Having thus acquired jurisdiction of the person...