
    APPEAL BY A GUARDIAN AD LITEM.
    [Circuit Court of Hamilton County.]
    J. C. Harper, Trustee, v. R. L. Cilley et al.
    Decided, March 5, 1904.
    
      Guardian Ad Litem, — May Take an Appeal as the Representative of His Ward — Liable Individually on the Appeal Bond.
    
    1. A guardian ad litem,, though having no personal interest in the suit, is entitled to take an appeal as the representative of the infant, who is a party to the suit, but without legal capacity to make a defense.
    2. While the guardian ad litem may be without authority to bind the estate of his ward by the giving of an undertaking in appeal, he is nevertheless liable individually on the bond.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   This case was appealed to this court by the guardian ad litem of an infant, and the motion is made to dismiss the appeal for the reason that the guardian was not such a party to the suit as entitled him to take an appeal. Section 5003 of the Ohio Statutes provides that:

“The defense of an inf ant. must be by a guardian for the suit, and may be appointed by the court in which the action is prosecuted or by a judge thereof, or by a probate judge.”

In the case of Long et al v. Mulford et al, 17 O. S., 485, the first proposition of the syllabus is as follows:

“It is the duty of a guardian ad litem to make for the infant a proper defense, and for this purpose to bring the rights of his ward under the consideration of the court for decision. ’ ’

And at page 503, it is said that:

‘ ‘ The appointment of a guardian ad litem is not a mere matter of form. A suit against an infant can not be prosecuted without such guardian; and the object of the requirement is to secure to the infant a proper defense.”

The ease in this court is the same as that in which the guardian was appointed, and the question whether the. defense should be made for the infant can not be determined by her, but must be determined by the guardian, and if, upon full consideration he deems it advisable to appeal the case to this court, it his duty to do so.

Harper & Allen, for plaintiff.

Bromwell & Bruce, contra.

The question has never been decided by our Supreme Court, but in other states under similar statutes it has been held that the guardian ad litem has the right to take an appeal from the judgment adverse to his ward. The case of Thomas v. Levering, 73 Md., page 451, the fourth proposition of the syllabus is as follows:

“In contemplation of Section 24 of Article V of the Code, regulating appeals from courts of equity, a guardian ad litem may be a party td the suit, and as such has the right of appeal on behalf of the infants, for the purpose of protecting or advancing their interests.”

In the case of Tyson v. Tyson et al, 68 Northwestern, 1015, the Supreme Court of Wisconsin held that:

“A guardian ad litem, appointed for an infant defendant by the court in which the action is prosecuted, pursuant to Revised Statutes, Section 2613, may appeal from a judgment against the minor, without permission of court.”

It is claimed by counsel for the defendants that the guardian ad litem is not a party to the suit, and none but the party is entitled to take an appeal under Section 5226, Revised Statutes. While it is true that the guardian has no personal interest in the suit, yet he takes the place of and represents the infant, who, though a party to the suit, has not the legal capacity to make a defense.

The further claim is that the guardian ad litem who gave an undertaking for the appeal, is without authority to bind the estate of the infant, but assuming this to be true, he would nevertheless be liable individually upon the bond.

The motion will therefore, be overruled.  