Sheahan v. Judge of Wayne Circuit

Per Curiam.

This application is for a mandamus to compel the respondent to recall certain money belonging to infants which was paid out of court into the hands of certain parties assuming a right to receive it as attorneys for the general guardians. The money was surplus funds remaining out of the proceeds of a foreclosure sale and belonging to certain infant heirs of whom relator was guardian ad litem. The circuit court, by an order which the judge returns was understood by him to have been acquiesced in by counsel, directed this money to be paid over to the general guardians or their solicit *70 ors, and made no provision for the services of the guardian ad litem or his solicitor. He subsequently refused to recall the money.. There was no showing what security had been given by the general guardians, except that the judge Ounderstood from statements of . counsel that they had given bonds in the probate court. No security was required by .the order referred to.

The court was, we think, bound officially to look to the interests of the infants, whether protected by their guardians or not. General guardians do not represent infants for any purpose in such a litigation as this, and whether proper parties at all or not, their solicitors are in no sense authorized to act so as to bind the rights of the infants. Guardians ad litem are appointed for this purpose, but they cannot bind the infants except in strict accordance with the rules framed for their protection. The court itself must be vigilant to preserve them from injury. By rule 94 no money can be turned over to the general guardian without taking new security unless the security he has already given is found ade-’ quate. This requires some responsible showing, and ■cannot be allowed to rest on loose verbal statements.

The court therefore could not properly order money to be paid to the general guardians without a showing concerning security which was not here made. It could not order or authorize the money to be paid to the solicitors, because they were strangers to the infants and had neither claim on them nor power to represent them. And the payment being wholly unlawful should have been recalled. It was also the duty of the court to make proper inquiry and protect any rights of the guardian ad litem or his solicitor before putting the fund out of its control.

The mandamus must be allowed.