Thomas v. Safe Deposit & Trust Co.

Miller, J., dissented. The petition for a modification of the decree in these cases, and for the dismissal of the appeal of William R. Brewer, guardian ad litem of the infant children, was ⁴⁶¹ disposed of by the Full Bench, and Judge Fowler delivered the opinion of the Court as follows: A petition has been filed by Pembroke L. Thom and William H. DeC. W. Thom, two of the appellees in these cases for a modification of the decree in respect of costs, and for a dismissal of the appeal of William R. Brewer, the guardian ad litem of the infant children. This motion to dismiss the app'eal of the guardian ad litem was discussed, but not very fully, at the' hearing of the cause, and it is again renewed, reliance being placed on the same grounds and the same authorities which were relied on then.

The Code, Art. 5, sec. 24, (Appeals) restricts the right of appeal to parties to the suit, and it is contended that the guardian ad litem is not such a party. But we cannot agree to this view. It is true that it has been held by this Court that a prochein ami is not a party to the suit within the meaning of the Evidence Acts. Trahern vs. Colburn, Ex’r, 63 Md., 103 ; but it by no means follows that a next friend or guardian ad litem may not be a party to the suit as contemplated by the provisions of the Code regulating appeals.

It was formerly supposed, and it was so contended in the case of Deford vs. The State, use of Keyser, et al., 30 Md., 179 , that a,prochein ami could not make the suggestion and affidavit for the removal of a case, because the Code, Art. 75, sec. 97, requires them to be made by a party to the proceeding. But in disposing of the question this Court said, “ The prochein ami or next friend, it is true, is not a technical party to the cause, but he is a party within the meaning and contemplation of the Constitution and the Acts of Assembly” relating to tbe removal of causes, “ and therefore capable of making the affidavit and suggestion. ’' And we can see no reason why a guardian ad litem should not be so far considered a party ⁴⁶² to the suit, as to have the right of appeal on behalf of the infants for the purpose of protecting or advancing their interests; otherwise not being themselves able or competent in contemplation of law to take any step in the cause, they would he compelled, in the absence, as here, of a regularly appointed guardian, to submit however unjust or oppressive a judgment or decree might be. In the opinion heretofore filed, we said we would not consider the motion to dismiss the appeal of the guardian ad litem, u because all the questions presented by his appeal are before us on