SETTLING THE CLAIMS OF A MINOR
By William E. Shreve, Jr.

Defense lawyers are often required to settle claims of plaintiffs who have not reached the age of majority, (19 in Alabama ¹) and whose disabilities of non-age have not been otherwise removed.² These settlements are commonly known as "pro ami settlements," in reference to the prochein ami or next friend who brings suit on the minor's behalf.³ They involve more than merely paying an agreed amount and obtaining a release. This article attempts to summarize the case law on pro ami settlements and serve as a guide for defense attorneys by answering some basic questions about the process of settling a minor's claim.

1. Why is settling the claim of a minor different than settling the claim of an adult?

A minor lacks capacity to contract⁴ and thus cannot enter into a binding settlement.⁵ The contract of a minor is voidable at his election during minority or within a reasonable time thereafter and once disaffirmed is "void ab initio."⁶ Settlement agreements and releases are no exception; they are subject to disaffirmance like any other contract,⁷ and since Ala. Code §6-2-8 (1975) tolls the statute of limitations during minority and allows the minor a period of time after reaching majority to file suit, the minor may disaffirm a settlement and reassert the "settled" claim long after the statute would have otherwise expired.⁸

A settlement agreement or release executed by a minor is thus of little or no value, as it leaves the defendant vulnerable to reassertion of the claim whenever the minor chooses.

2. Can the minor's parents, next friend, or guardian ad litem bind the minor to a settlement and release his claims?

Where suit is brought on behalf of a minor, "the minor is the real party to the suit; his rights are those litigated, and (the) recovery belongs to him."⁹ Neither a parent, next friend, attorney hired by the next friend, nor guardian ad litem has authority to release, compromise or settle the minor's claim.¹⁰

3. How can a defendant settle a minor's claim and be protected from disaffirmance of the settlement and reassertion of the claim years later?

The law encourages voluntary resolution of disputes.¹¹ If there were no means for a defendant and a minor plaintiff to enter into a valid, binding settlement, it would be virtually impossible to resolve a minor's claim short of trial. Fortunately, the law provides a means to settle protecting the defendant. A court, after hearing the facts, determines that a proposed settlement is in the minor's best interest, approves the settlement, and enters judgment thereon. The settlement is binding and enforceable and bars future claims for the same injury.¹²

4. What kind of hearing and determination are necessary for valid court approval?

Minors are said to be "wards of the court," entitled to the court's protection.¹³ Courts have the power and duty to determine that any settlement of the claims of a minor plaintiff is in the minor's best interest.¹⁴ More than mere pro forma approval of the settlement is necessary: "Before a (pro ami) settlement can be approved, there must be a hearing, with extensive examination of the facts, to determine whether the settlement is in the best interest of the minor."¹⁵ If the required hearing is not conducted, the settlement is subject to being set aside in an "independent action" or on motion pursuant to Ala. Civ. R. 60(b).¹⁶

Large v. Hayes¹⁷ illustrates a settlement properly approved after a hearing. The suit was a medical malpractice case involving injuries to a minor causing brain damage and total disability. The trial court heard testimony by the minor's parents, observed the minor in court, viewed a "day in the life" videotape, and reviewed the depositions of the minor's parents and five physicians. After considering the evidence regarding the minor's injuries and the dispute as to liability, the court determined that the proposed settlement was in the minor's best interest; approved the settlement; and entered judgment for the minor based on the terms of the settlement. When the minor's guardian ad litem later challenged the attorney's fee provisions of the settlement in a collateral proceeding, the Alabama Supreme Court held that since the trial court had approved the settlement, including the attorney's fees, after a hearing, the judgment was immune from collateral attack.

Abernathy v. Colbert County Hospital¹⁸ and Burlington Northern Railroad Co. v. Warren¹⁹ exemplify the consequences of failure to obtain valid court approval. In Abernathy, the purported settlement was "summarily approved without a hearing" and a consent judgment entered in favor of the minor for the settlement amount. In Burlington Northern, a wrongful death action, the court held a hearing in chambers at which the mother of the minor beneficiaries of the decedent's estate testified concerning her understanding and approval of the settlement, but the court "did not focus on whether the proposed settlement would be in the best interest of the children." In each case, the supreme court found the purported settlement invalid and voidable, as the required hearing involving an "extensive examination of the facts" had not been conducted.

The supreme court has emphasized that the trial court itself must make the final determination whether the settlement is in the minor's best interest, regardless of any agreement by the minor's next friend. In Tennessee Coal, Iron & Railroad Co. vs. Hayes,²⁰ the court stated:

^{The next friend's} mere consent is nugatory. It is as if it were not, and had never been. The court may, upon being advised of the facts, upon hearing the evidence, enter up a valid and binding judgment for the amount so attempted to be agreed upon; but this is not because of the agreement at all-that should exert no influence- but because it appears from the evidence that the amount is just and fair, and a judgment therefore will be conservative of the minor's interests.²¹

Since the next friend's consent is "nugatory," a court could conceivably approve a defendant's offer of settlement over the next friend's objection if it found the terms proposed to be in the minor's best interest.²² The Hayes case in effect makes the defendant the offeror and the court the offeree as to the settlement, since it is the court which must "accept" the offer of settlement.

5. What is the effect of a settlement approved after a hearing?

"A compromise approved by the court is valid and binding, and an approved settlement of a claim . . . bars a subsequent action . . . to recover for the same injuries."²³ A judgment entered on an approved settlement has the same preclusive effect as other judgments²⁴ and is immune from collateral attack.²⁵ "^A minor fully represented in court . . . is bound by a valid judgment in the same manner as any other party."²⁶

6. Is it necessary to have a guardian ad litem appointed to represent the interest of the minor plaintiff?

Rule 17(c) of the Alabama Rules of Civil Procedure requires appointment of a guardian ad litem for "an infant defendant," and further provides that a court may appoint a guardian ad litem to represent the interest of "an infant unborn or unconceived." Neither Rule 17(c) nor any other provision of Alabama law requires appointment of a guardian ad litem for a minor plaintiff in order to effect a pro ami settlement. Since the next friend who brings suit for a minor is "charged with the duties of a fiduciary,"²⁷ and since the function of a guardian ad litem is essentially the same as that of a next friend,²⁸ there is, technically at least, no need for a guardian ad litem where the minor is already represented by next friend.²⁹

Though not required, appointment of a guardian ad litem is certainly permitted,³⁰ and there are a number of reasons why the defendant or the court itself may wish to have a guardian ad litem appointed for a minor plaintiff. For example, the court has a duty to make sure that the minor's next friend "is present and acting in the infant's behalf."³¹ It may appear that the next friend has a conflict of interest or for some other reason is not adequately representing the minor's interest.³² Courts have recognized a conflict where the next friend, usually one of the minor's parents, has a claim being settled along with the minor's claim, since it is in the next friend's interest that more of the settlement proceeds be apportioned to his claim than the minor's.³³ In this situation, the defendant or the court may wish to have a guardian ad litem appointed who can represent the minor's interest with undivided loyalty.

In cases where the minor, through his next friend, is proceeding pro se, appointment of a guardian ad litem may avoid the appearance of the defendant overreaching or taking advantage of an unrepresented party. Since the guardian ad litem is usually an attorney, both sides are then represented and dealing at arm's length.

Having a guardian ad litem is also an assistance and benefit to the court in determining whether the settlement is in the minor's best interest. The court may feel more comfortable approving a settlement if a guardian ad litem has reviewed the case and formed an opinion that it is in the best interest of the minor plaintiff.

7. What steps need to be taken to get a settlement approved by the court?

If there is no lawsuit pending, a complaint has to be filed to get the claim before the court. The defense attorney usually prepares a complaint for execution by the minor's next friend or attorney and then files the complaint along with the defendant's answer and a motion requesting the court to set the matter for hearing and approve the settlement.

Once a hearing date is set, the defense attorney should make arrangements to have a court reporter present. If the settlement is ever challenged, a transcript is the best evidence that the trial court conducted a substantive hearing and extensively examined the facts to insure that the settlement was in the minor's best interest.³⁴

The defense lawyer should prepare a proposed order approving the settlement and submit it to the court at or following the hearing. Assuming the court finds the settlement to be in the minor's best interest, it will ordinarily sign the order after the hearing.

8. What testimony and evidence should be introduced at the hearing?

The hearing should focus on whether the settlement is in the minor's best interest in view of the evidence of injury and liability.³⁵ Other factors bearing on the merits of the settlement, such as " 'the financial responsibility of the defendant including available insurance coverage, the expenses incident to the procurement of testimony, and the delay of judicial proceedings,' " may also be considered.³⁶

The next friend, guardian ad litem if appointed, and the minor if capable, should all testify. The next friend and guardian ad litem should testify concerning the minor's injuries, medical treatment and current status, and their understanding and approval of the settlement as in the minor's best interest. The minor should be present so the court can "eyeball" him and examine his injuries if it wishes to do so. The minor may testify concerning the facts surrounding his injury, the extend of his injuries and his recovery therefrom, and if old enough to do so, his understanding and approval of the settlement.

If the minor is represented by an attorney working on a contingency fee arrangement, the attorney should offer testimony concerning his representation sufficient to permit the court to determine whether the fee is "reasonable" in view of Peebles v. Miley,³⁷ which sets forth the considerations involved in making this determination.³⁸ Attorney's fees are subject to approval like all other aspects of a pro ami settlement,³⁹ and if the fee provisions of the settlement are ever challenged "^a reviewing court must be able to ascertain from the record what factors the trial court considered in awarding the attorney fee."⁴⁰ Since the guardian ad litem's fee is discretionary with the court,⁴¹ the guardian should also offer testimony concerning his services so the court will have a basis for determining the fee.

The minor's medical records, depositions taken in the case, and any other testimony or evidence relevant to the minor's injuries and/or the dispute as to liability should be introduced. As noted above, the hearing should be transcribed by a court reporter. The goal is to make sure that if the settlement is ever challenged, the record will be sufficient to show that the trial court conducted a substantive hearing and considered substantial relevant evidence before approving the settlement.⁴²

9. What should be included in the order approving the settlement?

The order should include a general description of the facts and the nature of the minor's claim, an accurate account of what occurred at the hearing (including a recitation of the testimony and evidence introduced and considered by the court), the terms of the proposed settlement, and most importantly, a specific finding that the settlement is in the minor's best interest. The order should enter judgment for the minor in the amount of the settlement.⁴³ If an attorney's contingency fee is to be paid out of the settlement, the order should specify the fee, determine that it is reasonable, and direct the clerk of court to pay the fee out of the settlement proceeds. If a guardian ad litem was appointed, the order should include a space for the court to specify the guardian's fee and tax it as costs against the defendant.⁴⁴

For example, in an automobile accident case, the order approving a pro ami settlement might state as follows:

This cause came before the court on the defendant's motion for approval of pro ami settlement. The plaintiff is John Doe, a minor age sixteen, suing by and through his mother and next friend, Jane Doe. The defendant is ABC Co.

The plaintiff's claim arises out of a vehicular accident which occurred on or about January 1, 1993, on Highway 90 in Mobile County, Alabama. The complaint alleges that an employee of ABC Co., operating an ABC vehicle within the line and scope of his employment, negligently caused or allowed the vehicle to strike the plaintiff's vehicle, proximately resulting in personal injuries to the plaintiff. The plaintiff filed this action against ABC by and through his next friend to recover damages for his injuries. The defendant denies liability and has asserted affirmative defenses including contributory negligence.

The plaintiff is represented by an attorney retained by his next friend, Richard Roe. The court has also appointed a guardian ad litem to represent the interest of the plaintiff.

The parties propose to settle this case based on payment by the defendant of $10,000.00 in full satisfaction of all claims of the plaintiff arising out of the accident. Thirty-three and one-third (33 1/3%) percent of the settlement proceeds, or $3,333.33, is to be paid to the plaintiff's attorney as his attorney's fee. In addition, $500.00 of the settlement proceeds are to be paid to the attorney as reimbursement for expenses incurred in filing and prosecuting this action.

The court conducted an evidentiary hearing in this matter on June 1, 1993. The plaintiff was present in court, along with his next friend, guardian ad litem, and attorney. The plaintiff testified concerning the facts surrounding the accident, the extent of his injuries, his current condition, and his understanding and approval of the settlement. The next friend and guardian ad litem testified concerning the plaintiff's injuries and medical treatment and their understanding and approval of the settlement. Both expressed an opinion that the settlement is in the plaintiff's best interest. The plaintiff's attorney testified concerning this representation of the plaintiff, the terms of his contingency fee arrangement, and his costs incurred in prosecuting this action. The court received into evidence the depositions of the ABC driver and the plaintiff's physicians, and also the plaintiff's medical records. The court understands from the pleadings, evidence, and representations of counsel for the parties that there is a substantial dispute as to liability.

Upon consideration, the court finds and determines that the proposed settlement is fair, reasonable, and just and is in the best interest of the plaintiff and should be approved by the court. It is accordingly ORDERED, ADJUDGED, and DECREED as follows:

(1) The settlement proposed by the parties is approved.

(2) Judgment is entered in favor of the plaintiff and against the defendant in the amount of $10,000.00.

(3) The plaintiff's attorney, Richard Roe, is entitled to an attorney's fee in the amount of $3,333.33 and costs in the amount of $500.00, which shall be satisfied out of the said judgment awarded the plaintiff. The court finds that the attorney's fee is reasonable and has been duly earned by plaintiff's counsel.

(4) Upon payment by defendant of the judgment amount to the clerk of court, the clerk shall pay the sum of $3,833.33 to Richard Roe for his attorney's fee and expenses. The clerk shall hold and invest the remainder of the judgment amount for the benefit of the plaintiff until such time as a conservator is appointed for the plaintiff by the probate court or until such time as the plaintiff reaches the age of majority if no conservator is appointed.

(5) A guardian ad litem fee of Is hereby awarded and taxed as costs against the defendant.

(6) Upon payment of the judgment to the clerk of court, the defendant shall have discharged its obligations under the settlement and shall be discharged and released from any further liability to the plaintiff arising out of the accident made the basis of this lawsuit, and all claims which were or possibly could have been asserted in this action by the plaintiff against the defendant are hereby merged in this judgment and forever barred.

10. Once the settlement is approved, to whom should the defendant pay the settlement proceeds?

If a conservator has been appointed for the minor pursuant to the Alabama Uniform Guardianship and Protective Proceedings Act,⁴⁵ the defendant may pay the settlement proceeds to the conservator. The AUGPPA gives conservators broad powers over the estate and affairs of a minor, including authority to "^collect . . . assets of the estate" and "^receive additions to the estate,"⁴⁶ and provides protection for persons dealing in good faith with conservators.⁴⁷

If the minor has no conservator, and the settlement does not exceed (a) $5,000.00 if payable in a lump sum, or (b) a total of $25,000.00 in payments of not more than $3,000.00 per year if payable in installments, Ala. Code §26-2A-6(a) (1975) authorizes the defendant to pay the settlement proceeds to:

(1) Any person having the care and custody of the minor and with whom the minor resides;

(2) A guardian of the minor; or

(3) The judge of probate of the county in which the minor resides, if a resident of this state, or, if a non-resident, to the judge of probate or like officer of the county in which the debtor or creditor resides.

If payment is made pursuant to this provision of the AUGPPA, the defendant must file a notice of payment with the probate court.⁴⁸

If the minor has no conservator and the settlement does not exceed $10,000.00,⁴⁹ the defendant may create a custodianship and pay the proceeds to the custodian for the benefit of the minor pursuant to the Alabama Uniform Transfers to Minors Act.⁵⁰ The Comment to the Act specifically notes that "a tort judgment debtor of a minor . . . may create a custodianship under this section."⁵¹

The safest and probably the easiest way for the defendant to satisfy its obligation, regardless of the amount of the settlement or whether the minor has a conservator, is to pay the proceeds to the clerk of court. The clerk has authority to accept payments in satisfaction of a judgment,⁵² and the supreme court has specifically noted the propriety of paying a judgment in favor of a minor to the clerk of court.⁵³ Unless otherwise specified in the order approving the settlement, the clerk will hold the settlement proceeds for the minor until he reaches majority or until a conservator is appointed who can receive the proceeds for the minor.

The defendant should not pay the settlement proceeds to anyone other than the clerk of court, a custodian, a conservator, or one of the persons described in §26-2A-6(a) if the settlement falls within its provisions. Neither the minor's parent, next friend, attorney hired by the next friend, nor guardian ad litem has authority to accept or receipt for the settlement proceeds,⁵⁴ and payment to them will not satisfy or prevent execution on the judgment.⁵⁵

11. Does a conservator have authority to settle a minor's claim without court approval?

As noted above, the AUGPPA gives conservators broad powers over the estate and affairs of a minor. Section 26-2A-152 ("Powers of conservator in administration" includes the following:

A conservator, acting as a fiduciary in efforts to accomplish the purpose of the appointment, may act without court authorization or confirmation, to *** (19) Pay or contest any claim; settle a claim by or against the estate or the protected person by compromise, arbitration, or otherwise; and release, in whole or in part, any claim belonging to the estate to the extent the claim is uncollectible.⁵⁶

"Court" is defined elsewhere in the AUGPPA as "^a probate court of this state."⁵⁷

The AUGPPA provisions dealing with conservators supersede prior law on the powers of a guardian over a minor's estate,⁵⁸ repealed when the AUGPPA was enacted in 1987.⁵⁹ Former Ala. Code 26-4-80 through 26-4-83 (1975) allowed a guardian to settle "any claim or debt due or claimed to be due the ward which is of doubtful collection (either by reason of the doubtful solvency of the debtor or of the doubtful validity of the said claim or debt)," ⁶⁰ after a hearing and approval by a probate court. ⁶¹ In Bishop v. Big Sandy Lumber Co.,⁶² the supreme court held that these statutes authorized a guardian to settle tort claims of a minor with probate court approval. In a later case, Emerson v. Southern Railway Co.,⁶³ the court indicated that outside these statutes a guardian had no more authority to settle than a next friend and that a hearing had approval by the trial court were required.⁶⁴

Section 26-2A-152(c)(19) of the current code, quoted above, dispenses with the requirement of probate court approval. Under this statute, is a conservator now authorized to settle a minor's claim independent of any judicial determination that the settlement is in the minor's best interest? That may well be the case, but there is at present no Alabama Supreme Court or Court of Civil Appeals decision construing §26-2A-152(c)(19) or confirming that construction. The AUGPPA definition of "court," limiting it to "a probate court," is somewhat troublesome, since if the meaning of "court" were not so limited the statute would clearly sanction settlements by conservators without "authorization or conformation" by any court.

In the writer's opinion, in the absence of a pronouncement by an Alabama appellate court on the issue, defense attorneys would be well advised to request a hearing and obtain court approval for any settlement of a minor's claim, even if the minor has a conservator.

12. Is the procedure for settlement approval any different in federal court than in state court?

Rule 17(c) of the Federal Rules of Civil Procedure, which is somewhat different than the corresponding Alabama rule,⁶⁵ governs appointment of a guardian ad litem in federal court.⁶⁶ Other than that, it is not entirely clear whether stare or federal law controls the requirements for approval of a pro ami settlement in federal court, but the procedure appears to be the same regardless.⁶⁷ Federal courts, like state courts, have the power and duty to insure that any settlement proposed is in the best interest of the minor and "are vested with broad authority to inquire into the whole range of issues bearing upon the plaintiff's recovery in order to guarantee that the settlement . . . ^is in accord with ^{the minor's} interest."⁶⁸ Once approved, the settlement is binding and enforceable as in state court.⁶⁹

Conclusion

A hearing and subsequent approval of a settlement by a court with jurisdiction "cures" the defect of the minor's incapacity to contract and makes the settlement binding and enforceable.⁷⁰ The same defect, lack of capacity to contract, exists in persons mentally incapacitated,⁷¹ and many of the principles discussed in this article apply to settlements with non compos mentis plaintiffs as well as minors.⁷²
Make sure that a substantive hearing is conducted, prepare an order approving all aspects of the settlement which will withstand later scrutiny, and pay the judgment to someone competent to receive it, preferable the clerk of court. The minor's claim will then be extinguished and the defendant protected from any subsequent action for the same injury.

¹ Ala. Code §26-2A-1 (1975).
² See Ala. Code §§26-13-1 through 26-13-8 (1975), permitting removal of disabilities of nonage for minors over 18.
³ See Colquett v. Williams, 269 Ala. 383, 113 So.2d 347,348 (1959); Tennessee Coal, Iron & Railroad Co. v Hayes, 97 Ala. 201, 12 So. 98, 102-103 (1892); Isaacs v. Boyd, 5 Port. 388 (Ala. 1837). See also Ala. R. Civ. P. 17(c).
⁴ Commercial Credit Co. v. Ward & Son Auto Co., 215 Ala. 34, 109 So. 574 (1918).
⁵ See Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978).
⁶ Standard Motors, Inc. vs. Raue, 37 Ala. App. 211, 65 So.2d 829 (1953).
⁷ Hines v. Seibels, 204 Ala. 382, 86 So. 43 (1920). See also 42 Am. Jur. 2d Infants §82; 43 C.J.S. Infants §179.
⁸ See Large v. Hayes, 534 So.2d 1101, 1105 (Ala. 1988).
⁹ Maples v. Chinese Palace, 389 So.2d 120, 123 (Ala. 1980).
¹⁰ Abernathy v. Colbert County Hospital, 388 So.2d 1207, 1208-1209 (Ala. 1980); Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550, 448 (1946); Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356, 360 (1917); Tennessee Coal, Iron & Railroad Co. v. Hayes, 97 Ala. 201, 12 So. 98, 102-103 (1982); Collins v. Gillespy, 148 Ala. 558 41 So. 930 (1906); Isaacs v. Boyd, 5 Port. 388 (Ala. 1837).
¹¹ Large v. Hayes, 534 So.2d 1101, 1105 (Ala. 1988).
¹² Maryland Casualty Co. v. Tiffin, 537 So.2d 469 (Ala. 1988); Large v. Hayes, 534 So.2d 1101 (Ala. 1988); Chambers County Commissioners v. Walker, 459 So.2d 861 (Ala. 1984); Abernathy v. Colbert County Hospital, 388 So.2d 1207 (Ala. 1980); Tennessee Coal, Iron & Railroad Co. v. Hayes, 97 Ala. 201, 12 So. 98 (1892).
¹³ Stone v. Gulf American Fire and Casualty Co., 554 So.2d 346, 361 (Ala. 1989); Cochran v. Cochran, 49 Ala. App. 178, 269 So.2d 884, 895 (1970); Higdon v. Higdon, 243 Ala. 571, 11 So.2d 140, 141-142 (1942); Alexander v. Alexander, 227 Ala. 332, 150 So. 142, 143 (1933).

¹⁴ Burlington Northern Railroad Co. v. Warren, 574 So.2d 758, 761-762 (Ala. 1990); Maryland Casualty Co. v. Tiffin, 537 So.2d 469, 471 (Ala. 1988); Large v. Hayes, 534 So.2d 1101, 1105 (Ala. 1988); Chambers County Commissioners v. Walker, 459 So.2d 861, 866 (Ala. 1984); Abernathy v. Colbert County Hospital, 388 So.2d 1207, 1208-1209 (Ala. 1980); Tennessee Coal, Iron & Railroad Co. v. Hayes, 97 Ala. 201, 12 So. 98, 103 (1892).
¹⁵ Large v. Hayes, 534 So.2d 1101, 1105 (Ala. 1988).
¹⁶ Large v. Hayes, 534 So.2d 1101, 1105-1106 (Ala. 1988); Abernathy v. Colbert County Hospital, 388 So.2d 1207 (Ala. 1980).
¹⁷ 534 So.2d 1101 (Ala. 1988).
¹⁸ 388 So.2d 1207 (Ala. 1980).
¹⁹ 574 So.2d 758 (Ala. 1990).
²⁰ 97 Ala. 201, 12 So. 98 (1892).
²¹ 12 So. at 103.
²² See Dacanay v. Mendoza, 573 F2d 1075, 1080 (9th Cir. 1978).
²³ 43 C.J.S. Infants §235b. See Chambers County Commissioners v. Walker, 459 So.2d 861 (Ala. 1984).
²⁴ 43 C.J.S. Infants §259a. See Chambers County Commissioners v. Walker, 459 So.2d 861 (Ala. 1984).
²⁵ Large v. Hayes, 534 So.2d 1101, 1105-1106 (Ala. 1988).
²⁶ Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1200 (Ala.1978).
²⁷ Pate v. Perry's Pride, Inc., 348 So. 2d 1038, 1040 (Ala. 1977). See also Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566, 570 (1925).
²⁸ 43 C.J.S. Infants §222.
²⁹ Cf. Croce v. Bromley Corp., 623 F.2d 1084, 1093 (5th Cir. 1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816 (1981).
³⁰ See Peck v. Dill, 581 So.2d 800, 801 (Ala. 1991); Chambers County Commissioners v. Walker, 459 So.2d 800, 801 (Ala. 1984).
³¹ Pate v. Perry's Pride, Inc., 348 So.2d 1038, 1040 (Ala. 1977).
³² See generally Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d §1570 (1990 ed.).
³³ See Hoffert v. General Motors Corp., 656 F.2d 161, 162 (5th Cir. 1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982). See also Pate v. Perry's Pride, Inc., 348 So.2d 1038, 1040 (Ala. 1977); Malone v. Malone, 491 So.2d 932, 933 (Ala. 1986).
³⁴ See Large v. Hayes, 534 So.2d 1101, 1105 (Ala. 1988).
³⁵ Large v. Hayes, 534 So.2d 1101, 1105 (Ala. 1988).
³⁶ Rafferty v. Rainey, 292 F.Supp. 152, 154 (E.D. Tenn. 1968).
³⁷ 439 So.2d 137 (Ala. 1983).
³⁸ See Peck v. Dill, 581 So.2d 800, 802 (Ala. 1991); Ex parte Peck, 572 So.2d 427 (Ala. 1990).
³⁹ Peck v. Dill, 581 So.2d 800 (Ala.1991); Ex parte Peck, 572 So.2d 426 (Ala. 1990); Large v. Hayes, 534 So.2d 1101 (Ala. 1988). See also Hoffert v. General Motors Corp., 656 F2d 161 (5th Cir. 1980), cert. denied, 456 U.S. 961, 102 S. Ct. 2037, 72 L.Ed.2d 485 (1982); Dean v. Holiday Inns, Inc., 860 F2d 670 (6th Cir. 1988).
⁴⁰ Ex parte Peck, 572 So.2d 427, 429 (Ala. 1990).
⁴¹ Englund v. First National Bank of Birmingham, 381 So.2d 8 (Ala. 1980).
⁴² See Large v. Hayes, 534 So.2d 1101 (Ala. 1988).
⁴³ See Chambers County Commissioners v. Walker, 459 So.2d 861, 866 (Ala. 1984); Large v. Hayes, 534 So.2d 1101, 1104-1105 (Ala. 1988).
⁴⁴ Cf. Ala. R. Civ. P. 17(d); Englund v. First National Bank of Birmingham, 381 So.2d 8 (Ala. 1980); Sellers v. Sellers, 270 Ala. 173, 117 So.2d 386 (1960). Some authorities indicate the guardian ad litem's fee may be paid "out of the property or fund of the infant." 43 C.J.S. Infants 239.
⁴⁵ Ala. Code §§26-2A-160 (1975).
⁴⁶ Ala. Code §26-2A-152(c)(1),-(c)(2) (1975). (1975).
⁴⁷ Ala. Code §26-2A-151 (1975).
⁴⁸ Ala. Code §26-2A-6(a) (1975).
⁴⁹ Ala. Code §35-5A-8(a) (1975).
⁵⁰ Ala. Code §§35-5A-1 through 35-5A-24 (1975).
⁵¹ Comment, Ala. Code §35-5A-24 (1975).
⁵² Ala. Code §12-17-93(3) (1975).
⁵³ Smith v. Redus, 9 Ala. 99 (1846).
⁵⁴ Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356, 360 (1917); Collins v. Gillespy, 148 Ala. 558, 41 So. 930 (1906); Glass v. Glass, 76 Ala. 368 (1884); Smith v. Redus, 9 Ala. 99 (1846); Isaacs v. Boyd, 5 Port. 388 (Ala. 1837)
⁵⁵ 43 C.J.S. Infants §265 ("The payment of the judgment to any person not authorized to receive it will not operate as a satisfaction thereof, and it will not be binding on the infant, who will continue to be entitled to execution on the judgment").
⁵⁶ Ala. Code §26-2A-152(c)(19) (1975).
⁵⁷ Ala. Code §26-2A-30(3) (1975).
⁵⁸ Ala. Code §§26-4-1 through 26-4-155 (1975) (repealed effective January 1, 1988).
⁵⁹ See Comment, Ala. Code §26-2A-1 (1975).
⁶⁰ Ala. Code §26-4-80 (1975) (repealed effective January 1, 1988).
⁶¹ Ala. Code §26-4-82 (1975) (repealed effective January 1, 1988).
⁶² 199 Ala. 463, 74 So. 931 (1917).
⁶³ 404 So.2d 576 (Ala. 1981).
⁶⁴ Id. at 579.
⁶⁵ With respect to appointment of a guardian ad litem, Fed. R. Civ. P. 17(c) provides that "^the court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an active or shall make such other order as it deems proper for the protection of the infant or incompetent person." Rule 17(c) of the Alabama Rules provides,

. . .The court shall appoint a guardian ad litem (1) for an infant, defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the infant or incompetent person. When the interest of an infant unborn or unconceived is before the court, the court may appoint a guardian ad litem for such interest. Moreover, if a case occurs not provided for in these rules in which an infant is or should be made a party defendant, or if service attempted upon any infant is incomplete under these rules, the court may direct further process to bring him into court or appoint a guardian ad litem for him without service upon him or upon anyone for him.

⁶⁶ Roberts v. Ohio Casualty Co., 256 F2d 35 (5th Cir. 1958).
⁶⁷ See Dacanay v. Mendoza, 573 F.2d 1075 (9th Cir. 1978); Hoffert v. General Motors Corp., 656 F.2d 161 (5th Cir. 1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982); Dean v. Holiday Inns, Inc., 860 F.2d 670 (6th Cir. 1988); Williams v. Estep, 431 F.Supp. 75 (E.D. Tenn. 1976); Mealy v. Quality Construction Co., 448 F.Supp. 238 (E.D. Va. 1978); Hartsfield v. Seafarers International Union, 427 F.Supp. 264 (S.D. Ala. 1977); Rafferty v. Rainey, 292 F.Supp. 152 (E.D. Tenn. 1968).
⁶⁸ Hoffert v. General Motors Corp., 656 F.2d 161, 164 (5th Cir. 1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982).
⁶⁹ Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978).
⁷⁰ See Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978).
⁷¹ McAlister v. Deatherage, 523 So.2d 387 (Ala. 1988); Williamson v. Matthews, 379 So.2d 1245 (Ala. 1980). See also 76 C.J.S. Release §23.
⁷² See Emerson v. Southern Railway Co., 404 So.2d 576 (Ala. 1981); Henderson v. Illinois Central Gulf Railroad Co., 361 So.2d 1011 (Ala. 1978).

First published in Alabama Defense Lawyers Association Journal (Oct. 1997)