Speck v. Speck

• Court: Georgia Court of Appeals
• Writing for the Court: BELL, J.
• Citation: Speck v. Speck, 42 Ga.App. 517, 156 S.E. 706 (Ga. App. 1931)
• Decision Date: 19 January 1931
• Docket Number: 20352.
• Parties: SPECK v. SPECK.

156 S.E. 706

42 Ga.App. 517

SPECK v. SPECK.

No. 20352.

Court of Appeals of Georgia, Second Division

January 19, 1931

Syllabus by Editorial Staff.

Guardian must exercise diligence to protect interests of ward in litigation, and is liable to ward for damages from culpable omission or neglect (Civ. Code 1910, § § 3047, 3057).

Guardian acts at his peril in consenting to judgment against ward without proof (Civ. Code 1910, § 3057).

Ward may sue guardian for damages sustained by guardian's consent to judgment if allegations of petition are in fact untrue, regardless whether judgment might have been set aside on motion (Civ. Code 1910, § 3057).

Guardian sued by ward for improperly consenting to judgment against ward, cannot defend on ground that ward's interests were represented in case by executor (Civ. Code 1910, § 3057).

Guardian held not relieved from consequences of improperly consenting to judgment against ward, though executor was also liable for failure to properly represent ward's interests (Civ. Code 1910, § 3057).

Suit by ward against guardian for misconduct in consenting to judgment against ward in prior suit did not involve attack on such judgment.

Presumption is that judge reserving decision on special demurrers will properly pass thereon before trial.

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Action by George Speck against C. C. Speck. Judgment for plaintiff and defendant brings error.

Affirmed.

J. A McFarland, of Dalton, for plaintiff in error.

Oliver R. Hardin, Mann & Mann, and Mitchell & Mitchell, all of Dalton, for defendant in error.

Syllabus OPINION.

BELL J.

1. It is the duty of a guardian ad litem to exercise diligence to protect the interests of his ward in all matters relating to the litigation, and he is liable to his ward for such damages as may result from any culpable omission or neglect on his part. Civil Code 1910, § § 3047, 3057; 31 C.J. 1041.

2. A guardian ad litem acts at his peril in consenting for a verdict and judgment to be rendered against his ward without proof of the essential allegations of the petition, and, if the allegations be in fact untrue, as is charged in this case, the ward may elect to sue his guardian for such damages as he thereby sustains [ Short v. Mathis, 107 Ga. 807 (1), 33 S.E. 694; Beavers v. Brewster, 62 Ga. 575, 578; Stunz v. Stunz, 131 Ill. 210, 23 N.E. 407; 14 R.C.L. 289 et seq.], irrespective of whether the verdict and judgment might have been set aside on proper motion on his behalf [ Carroll v. Atlantic Steel Co., 151 Ga. 378, 106 S.E. 908, 15 A.L.R. 660].

3. Where the ward has sued his guardian upon such a cause, it is no sufficient reply that the guardian's misconduct was committed in a case in which the ward's interests were represented by an executor [ Gunn v. James, 120 Ga. 482 (1), 48 S.E. 148; Miller v. Butler, 121 Ga. 758 (1), 49 S.E. 754; Winn v. Walker, 147 Ga. 427 (2), 94 S.E. 468], where the ward was himself made a party and the court was thereby invested with jurisdiction to render judgment against him; the guardian being estopped to interpose such defense [ Hines v. Mullins, 25 Ga. 696 (2); Griffin v. Collins, 122 Ga. 102 (1), 49 S.E. 827; Gammage v. Perry, 29 Ga.App. 427 (2), 116 S.E. 126].

4. Even if the executor be also liable as for a failure properly to represent the ward's interests, this fact would not relieve the guardian from the consequences of his own neglect or misconduct. Compare Scearce v. City of Gainesville, 33 Ga.App. 411 (3), 126 S.E. 883.

5. A suit by a...