Jones v. Henderson

• Decision Date: 11 January 1934
• Docket Number: 6 Div. 390.
• Citation: 228 Ala. 273,153 So. 214
• Parties: JONES v. HENDERSON et al.
• Court: Alabama Supreme Court

153 So. 214

228 Ala. 273

JONES v. HENDERSON et al.

6 Div. 390.

Supreme Court of Alabama

January 11, 1934

Rehearing Denied March 15, 1934.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to vacate former decree by Phil Edwards Roy Jones, individually and as guardian for Allen E. Jones, and others, minors against Callie E. Jones Henderson, individually and as trustee for complainants, and others. From a decree sustaining a demurrer to the bill and dismissing it complainants appeal.

Affirmed in part, reversed in part, and remanded.

Walter H. Anderson and Edgar Allen, both of Birmingham, for appellant.

Smyer Smyer & Bainbridge, of Birmingham, for appellees.

FOSTER Justice.

To sustain a bill to vacate the decree of a court of competent jurisdiction for fraud, the bill must allege the facts showing that the fraud was in the concoction or procurement of the decree. This has been held to include false and fraudulent statements in the petition, which were necessary to invoke the power or jurisdiction of the court to render the decree under attack. Keenum v. Dodson, 212 Ala. 146, 102 So. 230; Kelen v. Brewer, 221 Ala. 445, 129 So. 23; Tolley v. Hamilton, 206 Ala. 634, 91 So. 610; McGathey v. Thompson, 224 Ala. 163, 138 So. 841; Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172; Noble v. Moses, 74 Ala. 604, 616.

The bill in the instant case does not allege fraud in or about the procurement of the decree, either by fraudulent and false averment in the bill necessary to give the court jurisdiction nor in respect to matters occurring after its filing and leading up to the rendition of the decree. The bill shows that the complainants in the original suit did have a leasehold interest such as would give the court jurisdiction to decree the relief sought, and it does not allege that any false and fraudulent representations were made in that bill which related to such interest of those complainants.

The fact that they have colluded with the mother of the minors whereby she executed the lease to give them the equitable right to file such a bill does not show fraud in procuring the decree by falsely alleging jurisdictional facts. The facts so alleged are not controverted now. The mother of these complainants might have filed the suit to annul the deed because it created an alleged perpetuity as well and with as much equitable right as her grantees, who were the complainants. Such collusion in no respect affected the rights of these complainants, unless there was fraud used in the concoction of the decree. No such fraud is alleged.

The bill also seeks to vacate the decree because it is alleged that there was no legal service on complainants who were minors, and because it alleges that no guardian ad litem was appointed for two of the four minors, all of whom are complainants here.

If minors are represented by a guardian ad litem appointed by the court, the failure to serve notice on them is a reversible error, but that does not render the decree otherwise subject to attack. Hubbard v. Vredenburgh Sawmill Co., 226 Ala. 54, 145 So. 320; Alexander v. Alexander (Ala. Sup.) 150 So. 142.

The bill alleges that an answer was filed for all the complainants by George Lewis Bailes as their guardian ad litem. In it he denied all the material allegations of the bill. It does not allege that the guardian ad litem participated in any fraud, or that his appointment was collusive or that he was not the person duly designated for Jefferson county to act as guardian ad litem for all minors in judicial proceedings where such guardian is needed. Gen. Acts 1915, p. 260.

It is immaterial upon the question of the validity of the decree in whose office his answer was prepared, and whether the record shows that he had notice of the taking of testimony unless fraud or its equivalent is alleged. Those matters are not alleged to be collusive and do not by themselves show fraud nor the invalidity of the proceedings.

In view of those facts, the allegation that the decree is void because no guardian ad litem was appointed for two of the minors is insufficient averment of the invalidity of the decree even as to them. A decree against minors cannot be sustained on error unless a guardian ad litem has been appointed in the precise manner required by statute. Woods v. M. C. & T. Co., 107 Ala. 364, 18 So. 108; Rowland v. Jones, 62 Ala. 322. But the failure to appoint a guardian ad litem, or to have an answer filed by one as such for the minors, does not render the decree void and subject to be vacated by suit in a court of chancery, if the minors had notice as required by law. Levystein v. O'Brien, 106 Ala. 352, 17 So. 550, 30 L. R. A. 707, 54 Am. St. Rep. 56; Bell v. Bannister, 212 Ala. 31, 101 So. 653; Hamilton v. Tolley, 209 Ala. 533, 96 So. 584; Crowder v. Doe ex dem. Arnett, 193 Ala. 470, 68 So. 1005; McCall v. McCurdy, 69 Ala. 65 (9).

It is alleged that the service of notice was ineffectual because it was served on the mother of the minors, and her interest was in direct conflict with that of the minors, and that the service therefore did not conform to rule 20, Chancery Practice.

Assuming that such attempted service is abortive and ineffectual, and amounts to the same as no service, we are remitted to the principle that though there is no service the representation of the minors by a guardian ad litem, appointed by the court, renders the proceeding immune from such an attack as this. Hubbard v. Vredenburgh Sawmill Co., supra; Hamilton v. Tolley, supra. So that the guardian ad litem must either be appointed by the court or be otherwise authorized pursuant to law.

Under the Act of 1915, cited above, the guardian ad litem for Jefferson county is a public officer, appointed by the Governor, whose duties are prescribed by law. He is thus required to represent and defend the interests of minors in all courts of law and equity. His appearance in court in pursuance of that duty, and his denial of all the allegations of the bill, brings him before the court as the representative of their interests as effectually as though he had been affirmatively appointed by the court. Under that act there is no occasion to appoint a guardian ad litem, except when the interests of the minors are conflicting among themselves, if the general guardian ad litem appears and represents them. He, as an officer of the court, represents those selected by the court in event of conflicting interests, and it appoints another to represent those whose interests are opposed to the minors for whom he is directed to appear. There is no conflict of interest here alleged among the minors themselves.

In respect to the appointment of a guardian ad litem by the court, the bill alleges that the record shows no guardian ad litem appointed for two named minors. But there were four of them, and it does allege that George Lewis Bailes, as guardian ad litem, appeared and answered for them all. The note of testimony shows that he participated in the final submission. We take notice of the fact that he was the person designated by the Governor to serve as guardian ad litem for that county. Longshore v. State ex rel. Kroell, 200 Ala. 267, 76 So. 33. His appearance and representation of the minors pursuant to his legal duty was with as much authority as though the court formally appointed him. These facts therefore save the decree from invalidity on account of the failure of due service on the minors.

A bill to vacate a decree for fraud, or for want of service, or for other circum stance which renders it ineffectual, not merely erroneous, is in the nature of a bill of review, and leave to file it is not necessary But when it seeks to review the decree for error apparent upon the face of the proceeding or for newly discovered evidence, it is a bill of review, and is controlled by the statute and other applicable rules. Graves v. Brittingham, 209 Ala. 147, 95 So. 542; McDonald v. Pearson, 114 Ala. 631 (8), 21 So. 534; Nichols v. Dill, 222 Ala. 455, 132 So. 900; Snead v. Lee, 218 Ala. 44, 117 So. 469; McCall v. McCurdy, 69 Ala. 65; Cunningham v. Wood, 224 Ala. 288, 140 So. 351.

With respect to the nature of the error apparent upon the face of the decree, which will support a bill of review, this court has clearly expressed the rule as follows:

"The errors which will support a bill of review are errors of law apparent on the face of the decree. There must be error in substance, of prejudice to the party complaining, apparent on the face of the pleadings, proceedings or decree.-Yeager's Appeal, 34 Pa. 173. Or, as it is expressed in 2 Dan. Ch. Pr. 1576, 'the decree complained of, must be contrary to some statutory enactment, or some principle or rule of law or equity, recognized and acknowledged, or settled by decision, or be at variance with the forms and practice of the court.'-Whiting v. Bank of U.S., 13 Pet. 6, 10 L.Ed. 331; Buffington v. Harvey, 95 U.S. 99, 24 L.Ed. 381; McDougald's Adm'r v. Dougherty, 39 Ala. 409; P. & M. Bank v. Dundas, 10

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