It is the duty of all courts to guard and protect the rights of infants, and not to hold them estopped by a mere failure to observe technical rules. Matters pertaining to jurisdiction are not among the questions which infants may waive or lose, either by the failure of their guardian ad litem, to raise the objection in the court below, or by any apparent mispleading by counsel in the cause. — Johnston v. Shaw, 31 Ala. 592.
Partition, in the Probate Court, is a proceeding of purely statutory creation. When a proper petition is filed, it is the duty of the Probate Court to take jurisdiction, and “appoint a day for the hearing of the same, not less than thirty days from its filing.” The record in this case shows, that the day appointed for the hearing — the day on which the order of sale was granted — was only twenty-seven days from the day of filing the petition. This was an irregularity and error, which -was not waived by the failure of the guardian ad litem to object in the court below. — Bev. Code, § 3121. Nor is it waived here by a failure to sever in the assignment of error.
Beversed and remanded.