Tyson v. Richardson

• Decision Date: 02 June 1899
• Citation: 79 N.W. 439,103 Wis. 397
• Parties: TYSON v. RICHARDSON.
• Court: Wisconsin Supreme Court

103 Wis. 397

79 N.W. 439

TYSON

v.RICHARDSON.

Supreme Court of Wisconsin.

June 2, 1899.

Syllabus by the Judge.

1. A guardian ad litem, appointed to defend infant defendants' title to property, is entitled to have the court appointing him, and in which the litigation occurs, determine the proper allowance that should be made to him for services actually performed and disbursements reasonably made, and to a reasonable exercise of the power of the court to enable him to recover such allowance out of any property under the control of the court or protected in the action.

2. Ordinarily the control of an infant's property, forming the subject of an action in court, for the purpose of enforcing payment of the allowance made to his guardian ad litem for services and disbursements therein, should not go further than the income thereof; but where there is no income, or not sufficient to secure payment of such allowance within a reasonable time, sufficient of the property should be sold for that purpose.

3. A guardian ad litem, having performed valuable services for infant defendants in protecting their title to property, from which there is no income, there being no other way by which the court can enforce payment of his compensation for services and disbursements, it is a proper exercise of judicial power to declare the same a lien upon such property and to order that in case the same be not paid within one year from the entry of the order, that the lien may be enforced according to the rules and practice of the court and the statutes in regard to foreclosure of mortgages.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Virginia C. Tyson against Hamilton P. Richardson. From the judgment, the plaintiff appeals. Reversed.

The action was commenced to quiet the title to some valuable real estate in the city of Milwaukee. The question involved was whether plaintiff was the owner in fee of such property or only a life interest, and her infant children, Virginia C. Tyson and Juliet C. Tyson, the estate in remainder, subject to some contingencies not necessary to specially mention. In due form of law Hamilton P. Richardson, a member of the bar of said court, was duly appointed guardian of the infant defendants, and thereafter performed the duties of his office with such fidelity and ability that, notwithstanding an adverse decision in such court, he obtained a decree fully establishing the rights of such defendants and limiting the title of plaintiff in the property in question to a life estate with power of appointment, the exact nature of which power it is not necessary to state. After the litigation was substantially terminated, Mr. Richardson, on a petition setting forth its history and his services, moved the court for an order fixing and allowing his compensation for such services and his disbursements in the matter, and for the payment thereof out of the entire estate in remainder conserved by his services and expenditures and declaring the amount so allowed a lien on such estate, and that such portion thereof as might be necessary should be sold to satisfy such allowance, and for a reference to aid the court in determining the proper amount of his claim, if that course should appear to the court advisable. The motion was heard on due notice to all persons interested, and resulted in an order denying it, from which order this appeal was taken.Charles E. Monroe, for appellant.

Quarles, Spence & Quarles, Rollin B. Mallory, and E. S. Bragg, for respondent.

MARSHALL, J. (after stating the facts).

It was the duty of the court or judge, or some officer authorized by law to perform the duties of judicial administration in the action, to appoint a guardian ad litem for the infant defendants, and such guardian was required to be an officer of the court fully competent to understand and protect the rights of the defendants, and in no way connected in business with the attorneys for the adverse party, and of sufficient financial ability to compensate the infants for any loss that might be sustained by them through his neglect or misconduct in attending to their defense. Circuit Court Rule 14, §§ 3, 4. That requirement was complied with. It was the further duty of the person appointed, being an officer of the court, to accept the trust reposed in him and to seasonably investigate the questions of law and fact involved in the litigation, and to the best of his ability discover the rights of the defendants, to take nothing for granted in plaintiff's favor that by any reasonable probability could be the subject of contest, to make no admissions regarding such matters adverse to the defendants, but to put the plaintiff to proof of the facts as to every such matter upon which relief in her behalf was demanded, to make a vigorous defense against plaintiff's claim where defense was reasonable in any view of the case, to bring all the facts and the law in defendants' behalf, so far as practicable, to the attention of the court, not stopping even with an adverse decision if reasonable doubt as to its justice existed; and it was the duty of the trial court to see that the duty of the guardian ad litem, as indicated, was faithfully performed. Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015. The appellant comprehended with strict accuracy the nature of his office and brought to the discharge of its obligations able, faithful and successful service, meeting and overcoming not...