Conway v. Clark

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 Avas 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 Avho 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 South. 312 , 11 L. R. A. 193, 24 Am. St. Rep. 918 ; Woods v. Transportation Co., 107 Ala. 364 , 18 South. 108 ; Wells v. Mortgage Co., 109 Ala. 430 , 20 South. 136 ; Estes v. Bridgeport, 114 Ala. 221 , 21 South. 512 . And it may be that a decree so renderéd or rendered by the consent of a. guardian ad litem, if one has been appointed, Avould be subject to a bill of revieAV Avithin the proper time. —Hooper v. Hardie, 80 Ala. 114 ; Mitchel v. Hardie, 84 Ala. 349 , 4 South. 182 .

The court had jurisdiction of the person, as the record sIioavs service on the minor and her guardian as *102 required by rule 20 of the Code. Having thus acquired jurisdiction of the person of the infant defendant, it was the court’s duty to appoint a guardian ad litem to make defense for her; but a failure to discharge this duty does not oust the court’s jurisdiction, which has already attached, but to the contrary, if the case proceeds to judgment, whether upon issue joined and trial had or upon default of the defendant, such judgment, though irregular and erroneous, and to be so declared upon appeal, is not void, and is therefore not open to impeachment upon collateral attack. This is the correct rule as laid down in the case of Levystein v. O’Brien, 106 Ala. 352 , 17 South. 550 , 30 L. R. A. 707, 54 St. Rep. 56 , and we see no good reason why it should not apply to decrees in equity as well as judgments at law, notwithstanding a distinction was drawn in said Levystein Case, supra, between it and the case of Dailey v. Reid, 74 Ala. 415 . We may add that this Dailey Case, supra, is not in conflict with the present.holding, as said appeal did not involve a collateral attack on a final decree, and the court did not hold that such a final decree would be void and subject to collateral attack, but merely held that a decree pro confesso against an infant was unauthorized, and such proceeding, when attempted, was simply void. The decree pro confesso may or may not be void, but, if void, this would not render the final decree void and subject to collateral attack. Here the chancery court had jurisdiction of the person, and the final decree is not only valid upon its face, but is not rendered void by other parts of the record, and is not therefore subject to collateral attack, and the trial court did not err in overruling plaintiff’s objection to the introduction of same in evidence.

It is next contended by appellant’s counsel that the decree and proceedings in the chancery court was a *103 defense by way of estoppel and was not available unless specially pleaded except as to the count in ejectment. We may concede the soundness of this contention, yet the trial court cannot be put in error for overruling appellant’s objection to said evidence, as said objection did not confine the evidence to the counts under which it was not admissible.

The judgment of the county court is affirmed.

Affirmed.

All the Justices concur.