
    BONDURANT vs. SIBLEY’S HEIRS.
    ^BHiLIN equity BY JUDGMENT DEBTOR'EOR REDEMPTION- OE LANDS;]
    3. Who are parties defendant. — A person against whom process- is pray.ecl, and wlio the bill prays may be required to answer, ,is-thereby-made a party defendant, notwithstanding the want of appropriate' allegations showing his interest in the litigation.
    2. Amended hill; filing without leave, and, waiver of irregularity. — An amended bill, or matter of amendment brought forward in a bill of' revivor, will be stricken out on motion, if filed without leave previously obtained; but, if no such- motion is made, and.answers are afterwards filed, treating the amendment as properly made-, and it is ■ recognized and acquiesced in, both-by the x>arties and by the-chancel-lory the apxiellate court will consider the irregularity as waived!
    3. Appointment of guardian qd litem fife infant defendant. — The appointment of a guardian ad litem for an infant, who is not at the time a-party to the suit, is a nullity; but,.after the infant has been made a party, the apipointment of a guardian ad litem for him, even if made ■ without any previous service oü process, and otherwise irregular, is-voidable merely, and not absolutely void; yet such irregular appointment, although it will work a reversal on error of a decree against: the infant, and may be vacated by the chancellor on motion, is valid until reversed or set aside; and. the subsequent- aqipointment of. another guardian, while the former .is unrevoked, is void.
    4.. Service of process on inf amt. — -Personal service of process on an infant,, who is under fourteen years of age, .is irregular:
    
      £.,Dismissal of hill for want of proseoution¡ — “Where'the complainant’ refuses, after his hill has heen pending for-several years, to pursue the course suggested by the chancellor, and- which is the only proper course, to bring- in a party, who, though made a defendant, .has not heen brought before the court, the bill-may he dismissed, on motion, for want of prosecution; and the complainant cannot excuse his negligence in failing to proceed against the absent defendant, on the ground that he was not a necessary party to the bill. Where the complainants are infants, suing by their next friend, the more usual, and, ordinarily, the proper practice, is to remove the next friend; yet, if the chancellor, in the exercise of his discretion, dismisses the hill, the appellate court will presume that he did so because the interests of tile-infants did not require a further prosecution of the suit.
    6. Who are necessary parties to hill for redemption. — The heirs-at-law of tho deceased purchaser of lands sold under execution, he having died intestate, are necessary - parties to a bill for, redemption filed by t he judgment debtor.
    Appeal from tbe Chancery Court of Berry.
    Heard before tbe Hon. James B. Clark.
    
      The original bill in this case was filed, on the 20th March, 1848, by Joseph IL Bondnrant, against the personal representative and heirs-at-law of Charles Sibley, deceased ; and sought to redeem certain lands, which had been sold under execution against said Bondurant, and which were purchased at the sale by said Sibley. Mary Perkins, the wife of A. N. Perkins, was ■' alleged to' be one-of the children and lieirs-at-law of said Sibley; and the bill prayed that 'she and her husband might be made defendants, that subpoenas might issuer ter them, and that they might be required to answer. On the 22d May, 1S4S, after the administrator had answered the-Mil, and after said A. N. Perkins bad also filed an answer, in which he alleged that his wife, Mary Perkins, died on or about the 20th February, 1848; the register granted leave to the complainant to amend his bill, by inserting at the proper place the following words : “That on the -- day of February, 1848, the said Mary Perkins died, leaving an infant; without a name, about four months old, surviving.”' On the 21st June, 1848, on motion of the complainant, the chancellor made an order, appointing the master “to act as the guardian ad litem for the infant defendant-mentioned in the amended bill.” At the June term, 1850, the complainant’s death was-: suggested, and leave was granted - to revive the-suit in thenaames-of his’heirs-at-law ; and-a bill of revivor was accordingly filed,, on the '14th February, 1851, in the names of his children as heirs-at-law, all of: them being-infants, and siting by their next friend. The bill of rfevivor recited the leave to amend the original'bill, and alleged, “that the said bill was accordingly amended as therein shown ; that by the said amendment of said bill it was shown that Mary Perkins died on the-day of February, 1848, leaving an infant, only four months old, surviving her, and that said infant is-named Charles S. Perkins.” The bill of revivor stated, also, that no guardian ad litem had -been appointed for said infant, although he was made a party to the bill by the amendment.; claimed the right to revive the suit against the defendants, naming Charles S. Perkins as one oí them; and prayed ■•'that' be might be required to answer both the original bill and the bill of revivor, and that subpoenas might issue to him and the other defendants. But, notwithstanding the leave-to amend the original bill, and the recitals of the bill of re-vivor that-the bill .had been„ accordingly amended, the amendment was not-in fact made, either by-interlineation, or on a separate sheet of, paper.
    •A subpoena was issued on the bill of-revivor, directed to Charles S. Perkins with the other defendants, and-was returned by the sheriff--on the 20th March, -185.1, “executed and answers- were afterwards filed,by the several adult defendants. At the June term, 1851, on motion of complainants’ solicitor, the chancellor-- appointed A. N. Perkins as the guardian ad litem of Charles S, Perkins-; the order reciting that the infant “is under the age of fourteen years, and that service as to him has been perfected by the service of subpoena- on him ; ” and an answer was filed, for the infant, by said A. N> Perkins, on the next day. At the November term, .1852, tfie -cause was argued before the chancellor, on the-.demurrers incorporated in the answers of. the several defendants : -and, in his ’opinion overruling the-demurrers-,-the chancellor noticed the fact that the original bill did not seem to have been amended, in accordance with the leave, granted for that purpose, and suggested that it might be ^ well to consider whether the bill has" been ever so amended as to bring in tliejnfant defendant.” At the November term, 1855, ,tbe- cause was submitted to the chancellor, on pleadings and proof, for final '-decree; and it was-insisted before him,,,by the counsel for ■defendants, that Charles S. Perk-ins had-not been brought before the court. The.-chancellor overruled that point,* and laeld that the infant was properly represented by bis father, A. N. Perkins; but he dismissed theabill, on t-he..ground that it did not contain a sufficient allegation of- the delivery of possession without suit. .At- the January term, 1857, on appeal to this court, the ¡chancellor’s-.decree was re- • versed, and the cause remanded; thus court declining to .-ikbide on the merits of the case» — -See 29 Aha, 570»
    
      On the 16th June, 1857, a subpoena was issued to». Charles S. Perkins, which was returned by the sheriff-“ex-* ecuted by handing copy of the within to A. N. Perkins, his father, for the said Charles S.. Perkins.” At rules be->. fore the register, on.-,the 16th November, 1857, on motion of the complainants, J. H. Harrison was appointed guardian ad litem for said-.Charles S. Perkins ; and, on the same day, said PiArrison filed, his consent in writing to act as such guardian, an¡d filed an answer for the infant. At-the December term,, 1857, the complainants asked leave toumend the original bill, in accordance with the amendment allowed by the register, as above stated, in May, 1818 j and also to amend that amendment, by striking out the words “without a name,” and inserting in lieu thereof the words “named Charles S. Perkins and, at the same time, the adult-, defendants moved to dismiss -the bill for want of prosecution. The chancellor overruled the defendants’ motion, and granted the complainants’ ’ motion j and the original’ hill was accordingly amended by interlineation. At the -. same time, the chancellor made- an order, ex mero moke, vacating and setting..aside the last«ubpoena which had been issued to Charles £L Perkins, together with the appoint-, njent of Harrison as his guardian ad litem, and the answer filed by said Harrison,as such guardian,.. At the December • term, 1858, the cause was again submitted to the chancel-.. lor, on pleadings and proof, for final decree ; and the de-. fendants again insisted that-. Charles -S.. Perkins was not properly, before the court, and moved to dismiss the bill for • want of prosecution. The, chancellor refused to dismiss. the bill, buf.held that the infant,had not been brought be-.. fore the court- in a proper-manner, inasmuch as the service ©f the first subpoena on him, and the .appointment of - A-i, N. Perkins as.his guardian ad litem, were both irregular and erroneous; -and .he therefore plaeed the cause back on the docket, in order thpt proper proceedings might be had to,. vacate that appointment, and to set aside all the subse-. quent orders based upon it. At the June term, 1859, on*, rnotion of the complainant^’. solicitor, the chancellor. sefe;. aside the appointment of A. N. Perkins ,as the guardian ad litem of Charles S. Perkins, and;all' the- proceedings which had been had thereon, at the costs of the complainants’' next friend ;; but, on the next day, on motion of the same solicitor, this order, was set aside, and the- former orders vacated by it were reinstated; the last order of the court reciting, that said solicitor moved to set aside the order of the previous day. because the compl&inants’mext friend-was dissatisfied with.him for having made the motion to* vacate said appointment,” &c. At the same time, the complainants’-solicitor-moved to set aside the order vacating the appointment of Harrison as the guardian ad litem-. of Charles S. Perkins, and the adult defendants again move® to dismiss the bill for want of prosecution. The chancellor refused to grant the order asked by the complainants;, and dismissed the bill, on defendants’ motion, for want off prosecution.
    The decretal order made at;the Decem-ber.-term, 1857, setting aside the., second subpoena to Charles.S. Perkins, the appointment of Ilarrisomas his guardian ad litem, and’ the answer filed by said Harrison ; the decretal order setting aside the appointment of. A. N. Perkins as guardian ad' litem ; the refusal to set aside the order vacating the ap-. pointmentof Harrison, and the final decree dismissing the* bill, are now assigned as error.
    G-Oldthwaíte, Rice &; Semple, for the-, appellants...
    1... Charles S. Perkins was, properly brought* before the-qourt, and Harrison was regularly appointed his guardians ad litem; and the chancellor had no power, at a subsequent - term, to vacate his appointment, and suppress the answer - filed by him. — Ansley v. Robinson, 16 Ala. 793; State-JBanhv. Johnson, 9 Ala. 3.67 ; 6 Paige, 371 ;.;2 A. K, Mar... Q42, 168 ; 14 Peters, 156 ; 1 Dan. Ch. Pr. 218.
    2. As the complainants were infants, they ought not to-be held responsible for the negligence or misconduct of their next friend. Instead of dismissing the bill, the chan— cgllpi; ought tp have removed the nex| friend» and appointed. another person in bis stead ; or,, at least, to have rbferred it to the'register to inquire what course the interests of-the infants required. — Smalhvood o. Butter, 3 Eng. L. & Eq. 210 ; Nalder o. Haw7cins.,'-2 Myl. ■& K. 24-3.
    ■3. Sibley’s heirs were-not necessary partiestothesn.it, their interests being fully represented by the administrator. — Castleberry v. Bierce, 5 Stew. & P. 150; 5 Dana, 285.
    • 4. Even if the heirs were necessary parties, and there was a failure to perfect service on one of them, whose interest is defined and separable, the complainants were entitled to a decree against the other-defendants-, to the extent ©f their interest in the lands.
    I» W. G-arrott, contra.
    
    The- complainants’ bill was pending in the court for twelve -.years, and yet Charles S. Perkins was never brought before the court. This omission was repeatedly pointed out by the defendants, dJncl was-made the ground oí several motions to dismiss; and the- complainants’ attention was directed- to it by sugg&s-tions-from the chancellor at different times. -Yet, instead of taking the proper steps to remedy this defect, the complainants’ next friend obstinately refused to act on the suggestion- of the chancellor. The. 28th rule of-chancery practice, requiring that a bill shall be . dismissed, if the complainant does not take proper steps to bring in the defendant before the second term after the filing of the bill, peremptory ; but, if -it be only matter of discretion with the chancellor, his decision is not only amply justified by the facts, but cannot be revised by this court on appeal.
   A. J. WALKER, C. J.

The infant defendant mentioned in the amended bill, was not a party to the suit at the time the master was appointed to act as guardian ad litem for him. The bill of revivor, however, made Girarles ¡S. Perkins a party defendant. The want of appropriate allegations, showing his interest in the litigation, does not jjrevent him-from becoming a party by virtue of tbe prayer that be sliould answer, and the prayer for process against him. — Walker v. Bank of Mobile, 6 Ala. 452 ; Lucas v. Bank of Darien, 2 Stew. 280. Thus far, the bill of re-vivor was a bill of amendment; and the amendment thus brought forward, having been made without leave previously obtained, would have been stricken out on motion. 1 Dan. Ch. Pr. 468. But no such motion was made. Answers-were filed by the defendants, treating the amendment -as properly made; and there- was afterwards a long acquiescence in, and recognition of the amendment, both by the the parties, and by the court. Under these circumstances, we do not think that the amending feature of the bill of revivor, as it is denominated, ought to be regarded as not belonging to the record, notwithstanding it may not have- been made pursuant to a previous order; — Farmers' Loan & Trust Company v. Reid, 3 Edw. Ch. 414.

As the infant-defendant mentioned in the amended bill was not a party to the suit at the time the-master was appointed to act as guardian ad-litem for him, that appointment was a .nullity ; and it seems to have been so treated by the chancellor. But, as Charles S. Perkins was made a party by the bill of revivor, the chancellor then had jurisdiction to appoint a guardian ad litem for him; and the appointment, even if made-without any previous service, and otherwise irregular, would not be void, but voidable merely. — Preston v. Dunn, 25 Ala. 507. The appointment of A. N. Perkins, at the June term, 1851, as the guardian ad litem of Charles $. Perkins, .ne matter-how irregular it may have been, was not void-; because the infant was a party to the suit when it was .made. It was, however, irregular ; and this court would, on account of the irregularity, have reversed a decree against the infant. The irregularity consisted alone in the fact, -which is shown both by the return on the -subpoena and by the order making the appointment,-that the subpoena-was served on the infant personally, who was at that time only three or four years of age. — 20th Rule of Chancery Practice, 24 Ala. V ; Clark v. Gilmer, 28 Ala. 265 ; Sanders v. Godley, 23 Ala. 473 ; Hodges v. Wise, 16 Ala. 509 ; Walker v. Bank of Mobile, 6 Ala. 452. The chancellor had, unquestionably, the power to vacate this irregular interlocutory order ; and it would have been his plain duty to do so, on the motion of the complainants. — 3 Dan. Ch. Pr. 1616, 1807 ; Walker v. Bank of Mobile, 6 Ala. 452.

The register’s appointment of Harrison, as the guardian ad litem of Charles S. Perkins, was clearly improper; because there was then an-.existing, appointment, which was. valid until set aside. Harrison’s appointment was strictly analogous to the appointment of a second administrator without revoking the appointment of the first. As the second appointment of an administrator would.be void, so also is the second appointment of a guardian ad litem in this case. If it were not so, there would be two separate and distinct guardianships at the same time. As Harrison’s appointment was void, the order of the chancellor setting it aside was correct.

The order setting aside the appointment of A. N. Perkins, as the guardian ad litem of Charles S. Perkins, was vacated on motion of the complainants’ solicitor; and' the solicitor seems from the record to have made the motion, because his client was dissatisfied with him for obtaining the vacation-, of the appointment. The appellants cannot complain of the action- of the chancellor in thus. setting aside the order vacating the appointment of. Perkins, although it may: have been improper, because it* was-, made at their instance,. It would have been improper: for the chancellor to grant- the complainants’' motion to.set' aside the order vacating the appointment of Harrison.. The order, setting aside the appointment of Perkins, which the complainants would .not permit to remain when it-had been made, and would not ask when it was suggested.;by the chancellor, was the only possible means by which the infant could be represented in court in.a regular manner. The complainants refused, not only to do what was necessary to prepare the cause for a hearing, but to permit the necessary order to remain when it had been made. There "was, therefore, a refusal on their part to ipróseCute the suit in a regular and legal manner; and we-think the chancellor had authority to dismiss it for want of prosecution, as he' did, on the defendants’ motion. Inátead of dismissing the bill, he undoubtedly might have removed the next friend of 'the infant complainants;; and ‘that would have been the more usual, and, ordinarily, the proper course. It is, however, a matter as to which'the chancellor must, we think, be allowed some latitude of discretion. We cannot presume that he acted ill disregard of the interests of the infant complainants. 0-n the contrary, we think it fair to .presume that he adopted the-course that he did, only upon a reasonable-conviction that the interests of the infants did not require a further prosecution of the suit. It is argued, however, for the appellants, that 'Sibley’s heirs were not necessary parties to the suit. But, if it were conceded that they were only proper, and not necessary parties ; it would be the duty of the complainants nevertheless, having made them parties to the bill, either to amend the bill, and omit them from it, or to proceed with proper diligence to bring them before the ’Court. The heirs, however, were clearly indispensable parties $ for thepbject of the bill was to divest them of a legal title which had descended to them. — Batre v. Auze, 5 Ala. 173 ; Erwin v. Ferguson, 5 Ala. 158; Kennedy v. Kennedy, 2 Ala. 573; Jennings v. Jenkins, 9 Ala. 286 ; 1 Dan. Ch. Pl. 241, 256.

The,decree-of the chancellor is affirmed.  