Miller v. West

Felton, J.,

concurring specially. In cases where infants or incompetent persons without a guardian are proceeded against, it is the action of a court in appointing a guardian ad litem or otherwise providing for due representation of the infant or incompetent that gives to the court jurisdiction to enter a final judgment in a justiciable controversy. See Code, § 81-212. In this case the defensive action was filed by a next friend and there was a duty on the part of the court to either approve the representation or appoint additional representation by appointing a guardian ad' litem. I do not wish to be understood as holding that where a person has been adjudicated insane, and no guardian has been appointed, an ex parte proceeding in which no defensive action is taken in time to prevent the final execution of the process is valid, because, while no special service of the process is required, notice by levy and seizure is contemplated as notice, and the rights of incompetents would be too greatly jeopardized. One proceeding against one already declared incompetent in such a way must do so at his own risk, and in my judgment, if he does so without first having a guardian appointed and no next friend acts for the incompetent, he should have a guardian appointed and give him notice of the proceedings before he attempts to have the process finally executed. I agree to the judgment in this case because the defensive action was filed and the court presumably and by implication passed on the sufficiency of the incompetent’s representation and by so doing gave the court jurisdiction of the case.