
    Hartford T. Rankin et al. v. Margaret A. Kemp and Husband.
    1. Under the act of July 1, 1858 (S. & O. 673, see. 14, 5), which requires guardians of infants to “ appear for and defend, or cause to be defended, all suits” against the infant, the guardian is authorized to appear for an infant defendant to a petition for dower; and where he appears and answers as guardian, and his answer is received and acted on by the court, the effect is the same as though he had been expressly appointed guardian ad litem, and had appeared and answered as such.
    2. Where the answer of such guardian admits some of the facts stated in the plaintiff’s petition, instead of denying them all, as required by the code, and the record shows that the ease was heard “ upon the petition, answer, and exhibits,” and that the court found all the averments of the petition to be true, it will be presumed that the court had sufficient evidence, in the exhibits or otherwise, to justify the finding.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Madison county.
    The original case was a petition for dower, filed in the court of common pleas of Madison county, by Margaret A. Rankin (now Kemp), the defendants thereto being all minors. Process was served upon the minors, and also upon their general guardians. No guardian ad litem was appointed for the infants, but their general guardians appeared and put in answers. By their answers the guardians admitted the marriage of the petitioner and the seizen of her husband, but denied all other allegations in the petition. The record shows that the cause was heard by the court “upon the petition, answer and exhibits,” and that the court thereupon found all the allegations of the petition to be true, and ordered the assignment of dower. It is alleged that in these proceedings the court erred (1) in omitting to appoint a guardian ad litem for the infants, and (2) in finding the allegations of the petition true upon the petition, answers and exhibits, the answers admitting facts prejudicial to the in fants, and which, by the code, are required to be denied by the guardian.
    
      This judgment was affirmed by the district court, and leave is now asked of this court to file a petition in error to reverse the judgment of affirmance.
    
      Spence & Arthur for the motion:
    
      Exhibits. — Wharton’s Law Dic. 365; 1 Bouv. Dic. 500; Code, secs. 32, 69; Tyler on Inf. and Cov. 204; 1 Foster (N. H.) 486; 17 Ohio St. 503; S. & C. 899, 590, sec. 125; 12 Johns. 192; 14 Johns. 417; 2 Edw. 414; 4 Paige, 115; 2 Paige, 304; 2 Hill, 333; 14 Gray, 179; 5 Gray, 399; 12 Mass. 16; 101 Mass. 60; Quigley v. Roberts, 44 Ill. 503; Sullivan v. Sullivan, 42 Ill. 315; Frierson v. Travis, 39 Ala. 150; Ivey v. Ingraham, 4 Cold. (Tenn.) 129; Allen v. Saylor, 14 Iowa, 435; Alexander v. Fraery, 9 Ind. 481; 2 Bla. Com. (marg.) 427 ; Walker’s Am. Law, 239, 530, 576; 1 Bouv. Inst. 141; Randall v. Turner, 17 Ohio St. 262.
    
      Harrison & Marsh, contra:
    
      Manser et al. v. Pratt, 101 Mass. 101; Swan v. Horton, 14 Gray, 179; Parker v. Lincoln, 12 Mass. 16, 19; Talbot v. Curtis, 1 Mass. Dig. 755; Bouv. Law Dic. 572; Ewing v. Hollister, 7 Ohio, 2d pt. 138; Cato v. Easly, 2 Stewart, 214; Long et al. v. Mulford et al. 17 Ohio St. 484; Guardian’s act of 1858, sec. 14; Mercer v. Watson, 1 Watts, 330, 350; Beverleys v. Miller, 6 Munford, 99; S. & C. 899, 522, 521, sec. 13; Pillsbury v. Dugan, 9 Ohio, 117; Reading v. Ford, 1 Bibb. 338; 1 Greenl. Ev. § 19, note 2; 63 O. L. 33, 34; Exhibits, Burrill’s Law Dic.; Code, secs. 138, 295; Randall v. Turner, 17 Ohio St. 262, 270.
   By the Court.

There was no error in this proceeding. The act of July 1, 1858 (S. & C. 673, sec. 14, § 5), requires guardians of infants to “ appear for and defend, or cause to be defended, all suits” against their wards. Where the guardian appears and answers as such, and his answer is received and acted upon, without objection, by the court, the effect is the same as if he had been expressly appointed guardian ad litem by the court, and had appealed and answered as such.

As to the objection that the cause was heard upon answers admitting facts prejudicial to the infants, and without testimony, it is enough to say that we are bound to presume that there was evidence before the court, either in the “ exhibits” or otherwise, to warrant the court in finding, as it did, that all the allegations in the petition were true. It is immate rial, therefore, to inquire whether the facts admitted by the answers, the marriage and seizen, were facts prejudicial to the infants, or whether the proceeding was one to which the provisions of the code in regard to infant defendants is applicable.

Motion overruled.  