In this case, so far as these two decrees made the mother herself personally liable, we have no power to interfere. The summons having been duly served upon her, we have no reason to suppose that she was prevented by any sufficient cause from appearing and defending her own suit, it being entirely within her control whether she would appear or not.
But as regards the minors, we think the case stands differently. It may be that the formality of serving the summons was, as regards them, duly followed. But we think that we may legally and fairly deal with this matter as regards the minors under the clause which provides that if the defendant be prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court should pass an order to set aside the judgment. It is not to be expected that the defendants themselves could have appeared in person, and they had a right to expect that their lawful guardian would take the proper, and what in this case was obviously a necessary, step to protect their interest. By a neglect of duty for which they are not in any way responsible, no one appeared on their behalf when the case was called on. We think it would be contrary to justice to hold that they are responsible for their non-appearance. We think they have a right to say in the words of the Act, that they have been prevented by sufficient cause from appearing when the case was called on. That being so, whether the summons was served or not, the Court below had power to set aside these decrees. That view of the matter seems to have been overlooked by the lower Court, otherwise probably it would have made the order to set aside the decrees. Accordingly we now make that order, that so far as regards the minors, these two decrees be set aside, and the case will be remanded to the lower Court to be proceeded with as against them in the usual way. As regards the lady herself, the decrees will stand.
We must bring it to the attention of the Court below that it is the duty of the Court to see that the interest of the minors are protected, and that the guardian is properly protecting the interest of the minors under his care.
Each party will pay their own costs of these appeals.