The real contest in the court below was as to which one of two applicants or petitioners should be appointed guardian of the person and estate of appellant, an infant about two years of age.
These contestants in the court below were appellee and the now named next friend of appellant. Both of these parties filed applications or petitions in the probate court of Dale county, seeking and praying that letters of guardianship issue to her, respectively, as prayed. The petitions were pending at the same time, and each alleged practically the same state of facts. The trial court properly heard both of these petitions at the same time, and the evidence as to each was practically the same as to the jurisdiction of the court and the necessity of appointment; the only difference being as to the proper choice or selection of one of the two parties.
The court granted the petition of appellee and dismissed that of the now next friend of appellant, and entered all appropriate orders. The now next friend of appellant did not appeal from the order denying her petition and granting that of appellee, as she could have done; but as next friend of the infant applied to the court that the infant be made a party thereto. The court on this application allowed a bill of exceptions setting out the entire proceedings above referred to, and thereafter this appeal was prosecuted by the infant through and by its next friend.
Appellee moves to dismiss the appeal because the infant was not a party to the order or decree appealed from. Appellant replies that, while not named pro forma as a party, it was interested therein, its person and property being the very subject-matter of the order and decree; that on its motion, through and by its next friend, it was subsequently made a party thereto for the purpose of prosecuting this appeal.
As we view the record, and hold in this case, it is unnecessary to pass on the motion to dismiss the appeal because the probate court unquestionably acquired jurisdiction of the parties and subject-matter as to the appointment of a guardian for the infant. The decree or order of the court granting letters to one petitioner and denying them to the other was unquestionably a judgment or order which would support an appeal. The infant was unquestionably interested in the proceedings and the decree or order, and whether the appeal should have been prosecuted therefrom in its name by next friend (as was done), or by this now next friend in her own name, as petitioner for like letters (whose petition was denied), it is unnecessary to decide, because the same persons will be liable for the costs of appeal, no matter in whose name the appeal should be prosecuted.
The statutes in these cases and proceedings do not provide for notice to the infant or minor; the minor being an infant only two years of age; it would have been useless, if not foolish, to serve it with notice — it could not have comprehended the object or effect of the notice.
The petitions were by the persons having the custody and control of the infant. It was alleged and proven that both its parents and natural guardians were dead, and that it had been removed into Dale county at the time the dead bodies of its parents were removed there for burial, and had remained there in the possession and control of the petitioners ever since. It was even doubtful whether its parents were not residents of Dale county when they died; but as to this it is not necessary to decide, because undoubtedly Dale county had been lawfully made the residence of the infant when the petitions were filed and the decree rendered. Moses v. Faber, 81 Ala. 449, 1 So. 587. So there is no question as to the jurisdiction of the probate court of Dale county. Code, § 4337. There is no question as to which of the two or three petitioners were entitled to letters of guardianship. Code, § 4342. Nor is there any doubt that the judgment or order of the court of probate will support an appeal. Code, §§ 2855, 2866.
So whether the appeal should be in the name of the next friend, or of the infant by such next friend, it is not necessary to decide. The record in this case shows no error whatever of the trial court in appointing appellee as the guardian. There is nothing to show that she is not a proper party in all respects to act as such guardian. If it should ever in the future be made to appear that she is not a proper person to act as such guardian, the statutes provide for her removal and the appointment of a suitable person.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
Response to Application for Rehearing.