1. The suit out of which this appeal arises was dismissed by the trial Court, but decreed by the lower appellate Court. The appellant before this Court is defendant 3, who alone contested the suit in the Courts below. Defendant 3 is the mother of minor defendants 1 and 2 and it would appear from the pleadings that her interests are adverse to those of the minor defendants.
2. The main point urged before this Court is that the appeal to the lower appellate Court was incompetent, the minor defendants not having been properly represented in that Court. It appears that, in the trial Court, a pleader was appointed an guardian of the minors for the purposes of the present suit, but that the pleader guardian did not appear and contest the suit on behalf of the minors. The same pleader, as was appointed as guardian of the minors in the trial Court, was described as guardian of the minors in the proceedings before the lower appellate Court and was duly served with a notice. He did not however enter appearance or take any other steps in the matter on behalf of the minors. It is contended on behalf of the appellant that the failure of the pleader guardian to appear and take steps ought to have been brought to the notice of the lower appellate Court by the plaintiff and that the plaintiff ought to have taken steps for the appointment of a fresh guardian for the purposes of the appeal before that Court.
3. It appears to me however that as the decree of the trial Court had not yet become final, the litigation, for the purposes of which the pleader guardian had been appointed, was still pending and that there was therefore no need for the appointment of a fresh guardian for the purposes of the appeal. The mere fact that the guardian did not enter appearance and take steps in connexion with the appeal does not of itself show that he was either unable or unwilling to act or that he was guilty of neglect towards the minors. It may well be that he thought that it was in the minors' interests that they should not appear and contest the appeal more specially as they had not appeared and contested the suit in the trial Court. I therefore hold that the appeal to the lower appellate Court was not incompetent and that the minors were duly represented before that Court. In this connexion it may be observed that the point dealt with above was not raised (as it should have been) before the lower appellate Court, and that, although the protection of the minor's interests is one of the main considerations in such matters, there is no reason to suppose that the appellant's apparent concern on behalf of the minors is at all disinterested. (The rest of the judgment is not material for the purposes of reporting.)
M.N
4. Appeal dismissed.