McQueen v. Grigsby

• Decision Date: 21 November 1907
• Citation: 152 Ala. 656,44 So. 961
• Parties: MCQUEEN v. GRIGSBY ET AL.
• Court: Alabama Supreme Court

44 So. 961

152 Ala. 656

MCQUEEN v. GRIGSBY ET AL.

Supreme Court of Alabama

November 21, 1907

Appeal from Probate Court, Greene County; Armand P. Smith, Judge.

Petition by Annie Grigsby and others against John D. McQueen, as guardian for certain minors, etc., for a sale of land for division. From a decree for petitioners, defendant appeals. Reversed and remanded.

Petition for a sale of land for a division among the joint owners thereof. It is shown by the petition that all the respondents named therein are minors, and it further appears that a guardian ad litem was appointed for all of said minors on the same day that the petition was filed, and it is not shown that service was had on said minors in any way prior to said appointment; the sheriff's return merely showing a service of notice by service of copy on each party named. The other facts sufficiently appear in the opinion of the court. From a judgment granting the petition ordering the lands sold and a confirmation of the sale, this appeal is prosecuted by the guardian ad litem.

A petition for the sale of land for division among joint owners, some of whom are infants, should allege their age and the persons who have charge or care of them.

Taylor & Hearing, for appellant.

Harwood & McKinley, for appellees.

DENSON J.

This is a proceeding begun in the probate court of Greene county for a sale of real estate and a division amongst joint owners. The order of sale was granted, and a commissioner was appointed to make the sale. He made the sale and reported it to the court in regular form. The report was duly confirmed by a decree of the court entered on the 28th day of October 1906. From the decree of confirmation this appeal is prosecuted.

In such proceedings the decree of confirmation is the final decree from which an appeal may be prosecuted and on which the entire proceedings may be reviewed. 15 Ency. Pl. & Pr. 827 and cases cited in notes 4 and 5 to the text; Kellam v Richards, 56 Ala. 238, 240, and cases there cited; Morring v. Tipton, 126 Ala. 350, 28 So. 562.

A guardian ad litem for an infant defendant should not be appointed until the infant has been properly brought before the court in one of the modes prescribed by law. Such premature appointment constitutes error, for which a decree of sale founded thereon will be reversed on appeal. Walker v. Hallett, 1 Ala. 379; Hodges v Wise, 16 Ala. 509; Cook v. Rogers, 64 Ala. 406; Herring v. Rickets, 101 Ala. 340, 13 So. 502; Cantelou v. Whitley, 85 Ala. 247, 4 So. 610. The record here shows affirmatively that all the...