Staunton.

#### Weaver & Others v. Glenn.

September 21, 1905.

' 1. *Pleading*— Infants—Guardian *ad litem*— Failure *to Appoint*— Effect.—An infant can only appear and defend an action by a guardian *ad litem*duly appointed for that purpose, and the omission to appoint such guardian *ad litem*is reversible error in all cases unless it appears that the judgment is for the infant, and not to his prejudice.

Error to .a judgment of tbe Circuit Court of Augusta county, iu an action of ejectment. Judgment for tbe plaintiff. Defendants assign error.

*Reversed.*

Tbe opinion states tbe case.

*Curry & Glenn,*for tbe plaintiffs in error.

Whittle, J.,

delivered the opinion of tbe court.

This action of ejectment was brought by tbe defendant in error against tbe plaintiffs in error to recover tbe land described in tbe declaration. At tbe trial, tbe defendants "without waiving any of their rights, agreed with tbe plaintiff to submit all matters of law and fact to tbe determination of tbe court, whereupon a joint judgment was rendered against them for. tbe land in controversy and costs.

It appears that four out of tbe five claimants of tbe property in fee simple are infants, .and that no guardian *ad litem,*was appointed to defend them, which omission constitutes the first *444assignment of error. In every action or suit against an infant defendant, it is the duty of the court wherein the same is pending, or of the judge or clerk thereof in vacation, to appoint, a guardian *ad litem*to represent the interest or estate of the infant. Ya. C'ode, 1904, sec. 3255.

“So necessary is .the .appointment of a guardian *ad litem*esteemed,” says Mr. Minor, “that although the process against an infant is issued and executed against, him just as against .an adult, and the declaration or bill setting forth the complaint is framed and filed in like manner, yet, after the declaration or bill is filed, no rule or any proceeding whatever can be had lawfully until a guardian is designated; and any step that is taken will be void as to the infant.” 1 Minor’s Inst. (2nd Ed.), 432; 1 Barton’s Law Pr. 206.

In *Turner*v. *Barraud,*102 Va. 324, 46 S. E. 318, this court held: “The only way known to our law of bringing an infant before a court is by a guardian *ad litem*appointed to conduct his defense for him. If he has appeared in a suit by a guardian *ad litem*regularly appointed for that purpose, he cannot after-wards, in an independent suit impeach a decree rendered against him for errors and irregularities in the proceedings in the suit in which the decree was rendered; but if no guardian *ad litem*w.as appointed or recognized by the court, he is not bound by the action of one who assumed to act for him, and the decree against him is void, and may be collaterally assailed.”

In the yet more recent case of *Langston*v. *Bassette, ante,*p. 47, 51 S. E. 218, it is said: “As an infant can only appear and defend by guardian *ad litem,*proceedings against him are generally fatally defective unless the record shows that a guardian *ad litem*was assigned him. Code, 1881, sec. 3255 (Va. Code, 1904, p. 1114). See *Roberts*v. *Stanton,*2 Munf. 129, 5 Am. Dec. 463; *Cole*v. *Pennell, 2*Rand. 174; *Parker*v. *McCoy,*10 Gratt. 594; *Ewing*v. *Ferguson,*33 Gratt. 548; *Turner*v. *Barraud,*102. Va. 324, 331, 46 S. E. 318; note to *Caperton*v. *Gregory,*11 Gratt. (Va. Rep. Anno.), at page 251 *el seq.,*where a number of cases on the subject .are collected.”

*445■ Tbe omission to appoint a guardian *ad litem*for an infant defendant is reversible error in all cases, unless it appears tliat tbe judgment or decree is for *the*infant, and not to bis prejudice. Va. Code, 1904, sec. 3449; *Langston*v. *Bassette, supra.*

Without passing upon any other assignment, we are of opinion that for this initial error tbe judgment complained of must be reversed, and tbe case remanded for further proceedings to be bad therein in conformity with this opinion.

*Reversed.*