56 Miss. 92 | Miss. | 1878
Lead Opinion
delivered the opinion of the court.
The only error assigned is “the insufficiency of service of process ’ ’ on plaintiffs in error; as heirs and devisees of the testator, to answer the petition of his executor to the Probate Court to order a sale of his real estate and declare the estate insolvent. A citation for the heirs and devisees was issued,
This case is to be determined by the Code of 1857, in force in 1867, when these proceedings were had. Since the decision of Mundy et al. v. Calvert et al., 40 Miss. 181, it has been accepted as true that, under the Code of 1857, the return of process from the Probate Court by the sheriff must conform to the requirements of the Circuit Court law, in showing how the officer had executed it.
In Merritt v. White, 37 Miss. 438, it had been held that a general return of “Executed,” on original process from the Circuit Court, was not good ; and in Robertson v. Johnson, 40 Miss. 500, the same rule was declared as to process from the Chancery Courts,— a conclusion justified, perhaps, by art. 27, p. 544, Rev. Code of 1857, which declares that all process of any Chancery Court shall be executed in. the same manner as writs of the like nature from the Circuit Courts are required to 'be executed. No provision required process from Probate Courts to be executed or returned according to the requirement of the law for the process of Circuit Courts, and nothing in the Code of 1857 suggests such a thing. On the contrary, art. 20, p. 428, gives the Probate Court power to issue a summons for any person, etc., and provides, where it is “necessary or proper to enforce the appearance of the party, the court on the retunj of ‘ Summoned,’ and failure to appear, may issue an attachment,” and art. 21, p. 429, provides how all process of the Probate Courts shall be served. The Cod¿ of 1857 con
The ruling in Mundy et al. v. Calvert et al., supra, is that a general return of “Executed,” on process of the Probate Courts, is not sufficient, and that the rule prescribed for the return of the process of Circuit Courts is equally applicable to the Probate Courts. We think this an erroneous view of the Code of 1857, and that under it a general return of “Executed” or “Summoned,” without more, is sufficient.
In the case under consideration, the sheriff, in making his return, attempted to comply with the requirement of the Circuit Court law, by showing how he had executed the summons, and, in doing this, showed that he had not complied with the directions of the law; and, therefore, if the appointment of a guardian ad litem to represent the infants could not be legally made without summoning them, it was erroneous to proceed to a decree in this case, the infants not having been legally summoned to appear and answer the petition.
In McAllister v. Moye, 39 Miss. 258, it was announced, for the first time in this State, that the Probate Court had no jurisdiction to appoint a guardian ad litem to represent infants defendant, until after notice to them by service of process or publication.
This case was decided under the act of 1846 (Hutch. Code, 728, sect. 4), which introduced into the Probate Court in this State the legal requiretnent to appoint guardians ad litem for infants. It was not claimed, in that opinion, that any statute required the service of process upon infants, but that the chancery rule required it, and therefore it should obtain in the Probate Court. The section of the act of 1846 cited above was substantially adopted in art. 32, p. 431, Code of 1857; but neither it nor any other article of that Code required an infant to be summoned in any proceeding in the Probate Court. It is the guardian who is to be summoned in all cases where a minor is interested ; and if he had no guardian, or the guardian failed to appear, or was personally interested, a guardian ad'litem was to be appointed. Art. 32, p. 431; art. 88, p. 446; art. 98, p. 448; art. 106, p. 451; art. 151, p. 463; art. 153, p. 464; art. 173, p. 469.
As stated above, the Code of 1857 contains a complete system of laws for the administration of the duties and powers of the Probate Court, and that is in the chapter on that subject, which is sui generis, and independent of the provisions applicable to other courts, except in so far as some other provisions may be made applicable in express terms to the Probate Court.
The issuance and execution' and return of all process of this court is regulated by the provisions of this chapter, applicable to it alone (arts. 16, 20, 21) ; the mode of proceeding against non-resident or absent parties is provided (art. 22) ; the subject of taking the depositions of witnesses is
In all this there is no requirement that a minor shall, in any case, be cited. In every instance his guardian is to be summoned or cited ; and if he is personally interested, or fails to appear, or if there is no guardian, a guardian ad litem was required to be appointed. No statute required the minor to be cited. Why cite him? If cited, and present, he could do nothing; could not appear; could not consent to anything; could not appoint an attorney. The court is his protector and the guardian of his interests -, and the statute required the court to appoint a guardian ad litem, as a further means of protecting the interests of the minor, in' all which the minor must have been passive and could take no part. It is a reasonable assumption that, if it had been intended to require the minor to be cited, befoi’e the appointment for him of a guardian ad litem by the Probate Court, it would have been so declared in the statute regulating this matter in the Probate Court, as it was expressly declared as to th*e Chancery Court in art. 52, p. 548. The “ Probate Court ” law furnished a guide for every step in the exercise of the powers of that court. It is neither necessary nor allowable to resort to the regulations for other courts in determining the practice of the Probate Court, except
In Winston et al. v. McLendon, 43 Miss. 254, these views were indicated to some extent, and in Saxon et al. v. Ames et al., 47 Miss. 565, the subject was further elucidated. Impressed by the importance of the subject, we have thoroughly investigated and maturely considered it, and announce as our conclusion that it was not a prerequisite to the appointment of a guardian ad litem, under the Code of 1857, that the minors should first have been cited, but that the court had the right to appoint a guardian ad litem without process, for the minors, and to proceed to a decree after answer of the minors by their guardian ad litem thus appointed. Besides the suggestive fact that the Code of 1857, in art. 52, p. 548, of the “ Chancery Court” law, requires the minor to be made a party, by process or publication, before the appointment of a guardian ad litem, and that the “ Probate- Court” law does not make this requirement, is the important consideration of the nature of the functions of the Probate Court, and the peculiar situation of minors in their relation to society. The Probate Court had full and exclusive jurisdiction of minors’ business, embracing the guardianship of their persons and estates; and infants are regarded as without discretion, and therefore without legal capacity, except to a very limited extent, bounded by necessity. They cannot enter an appearance to a suit, nor appoint an attorney; therefore the duty of the court to appoint a representative for them, to appear and make their defence. A person sui juris may appoint an attorney, whose appearance for him supplies the want of process for him, and gives the court jurisdiction over him as if served with process. Why should it be thought strange that the Probate Court, charged with the business of infants and the duty of their protection, should possess the power to appoint a guardian ad litem as to any matter affecting the interest of the infant in that court, ■without citing the infant, who could do nothing if cited and present? This court had power to appoint general guai’dians
In no case is an infant required to he summoned. In every case his general guardian, if he have one in this State, must be. He must have a guardian in court to represent him. That cannot be dispensed with without error; but in no case is it necessary to cite an infant before appointing a guardian ad litem, because no law requires .it. In Circuit Courts and Chancery Courts the rule is different, made so by practice, and in our Probate Courts by statute. In those courts no mention is made, in the initiatory proceedings, of the infancy of a defendant, who is proceeded* against as an adult, except as changed by statute requiring service of summons on not only the infant, but on his father, mother, or guardian, if he has any in this State. Those courts proceed according to the practice established without statute, or as regulated by statute. The Probate Court was a peculiar one, which did not proceed according to the course of the common law, but was regulated by statute; and, as above shown, the statute (Code 1857, p. 489, arts. 63, 64) did not apply to the Probate Court. It seems surprising that it should ever have been supposed that those articles did apply to the Probate Court. They are found in the chapter on “ Circuit Court,” under the heading of “ Original and Mesne Process:” The language is applicable to a Circuit Court, and that of art. 63, held in Mundy v. Calvert, 40 Miss. 181, to be applicable to the Probate Court, is confined in terms to the Circuit Court, as shown by the proviso which speaks of the “ clerk of the Circuit
It may be the better policy to require service of process on all infants, as a condition precedent to a valid order affecting their interests in the Probate Court, but it is manifest that the Code of 1857 did not require it; and, believing that it was competent for the Legislature to dispense with it, we see no power in the court to require it.
Decree affirmed.
Concurrence Opinion
concurring:
The utterances of this court have not been, perhaps, uniform and harmonious on the subject of service of process in proceedings instituted under the probate law, as administered under the Code of 1857 in the Pro'bate Court, and under the present Constitution in the Chancery Court.
The confusion lias arisen mainly from a failure to observe the different mode by which the court,' in probate proceedings, obtains jurisdiction over minors, from that required in the ordinary chancery suit for equitable relief.
Our statutes present the anomaly that the Chancery Court obtains cognizance over an infant and its property, in one class of suits, without personal service on the infant, and in another class of suits it cannot proceed to a decree affecting the infant without service, or constructive service. This grows out of the subjects of its jurisdiction. It has, under the present Constitution, the same jurisdiction that belonged to the Probate and Chancery Court under the Constitution of 1832, and exerts what (for convenience) we call its probate jurisdiction according to the formula of procedure prescribed by the statutes.
The difference was noticed in Winston v. McLendon, 43 Miss. 257, which was an appeal from the decree of the Probate Court to sell lands of the intestate to pay the debts. The decree was reversed because the coui’t had appointed a guardian ad litem, when the record showed that the minor had a
In Mills v. Smith, 44 Miss. 302, 303, it was shown in the petition that the minor had no guardian, and it was said by the court, citing art. 42, p. 31, Code of 1857, that the very case intended by the statute had occurred, for the appointment of a guardian ad litem. The decree was affirmed without a hint that the father or mother, as provided in the Chancery Court law, ought to have been summoned. It is true that publication had been made for the infant as a non-resident, but that was not relied upon by the court as an essential matter.
In Saxon v. Ames, 47 Miss. 566, which was a proceeding under the statute for a sale, if partition of the land could not be made; the reasoning was, that in that special proceeding, as well as in proceedings to sell lands when the personal estate is partially or totally insolvent, under sects. 98, 99, pp. 448, 449, Code- of 1857, the entire method was regulated by the Probate Court statutes. The point adjudged was, that inasmuch as the guardian of the minor appeared and represented the ward, the requirement of art. 117, Code of 1857, was complied with, and the minor was bound by the decree. The court said : “ The distinction is as to who are proper defendants, and as to the notice to them, where infants are concerned, between a court of equity and the Chancery Court exerting its probate jurisdiction. The cases of Ingersoll v. Ingersoll, 42 Miss. 155, and Price v. Crone, 44 Miss. 557, illustrate how the infant must be brought in as defendant in the ordinary equity suit. Wells v. Smith, 44 Miss. 296, and McLendon v. Winston, 43 Miss. 254, are instances of the latter. * ' * * In the former, the infant must be personally served, and the-father, mother, etc. Under .the Probate Court law it suffices generally to serve the guardian., ’ And it was held that no process or summons was .required for the
In the late case of Erwin v. Carson, 54 Miss. 282, an ordinary suit in equity, — it was held that it must appear in the record that there was no father, mother, or guardian in this State; otherwise, jurisdiction was not obtained over the minor. Courts of equity always required subpoenas to be served on infant defendants. The service prescribed by the Chancery Court law, on father, mother, etc., is super-added.
The authoi'ities which I have cited announce emphatically that the acquisition of jurisdiction in probate proceedings, over a minor and his property, is regulated by the special statutes applicable to them, and not by statutes referring to process and service on infant defendants to a suit in equity. The regularly appointed guardian is the representative of the ward in probate proceedings, and in no state of case is the minor directed to be personally served. By art. 104, p. 451, Code 1857, on final settlement by an executor or administrator, summons shall be served on the guardian of an infant legatee or distributee; and if there be no guardian, the court shall appoint a guardian ad litem.
So, under ar-t. 151, p. 468, Code of 1857, where the guardian applies to sell land of his ward, notice must be given to co-heirs and three of the nearest relatives of the ward, if there be any in this State. ■
In neither of these cases, nor any other in the probate law, is there direction to summon the minor. But in every case the appearance and defence must be by the regular guardian, or the special guardian quo ad hoc.
Publication may be made to a non-resident guardian. That, I suppose, applies to a guardian who has been appointed in this State, and who is amenable to its courts as such. Such non-resident guardians are expressly contemplated and provided for by arts. 160 and 161, p. 466.
The statute esteems this temporary guardian, with duties limited to the particular suit, as a full and complete representative of the rights and interests of the minor. He stands before the court clothed with authority by the law, as full and perfect for that suit as the general guardian is for all the duties incident to his office. He supplies the incapacity of his temporary ward, and does for him what he could not do for himself.
It was as competent for the Legislature to provide for a special guardian in certain circumstances, to represent the infant, as for the general guardian in all others. The necessity for either rests upon the legal incapacity of the minor ; and it was within legislative discretion to indicate some fit person who shall stand before the court as the representative and defender of the infant’s rights.
Perhaps there are cases in this court where attention was not'directed to the subject here discussed, and the judgment might be in conflict with the conclusions reached in this case. In Miller v. Palmer, 55 Miss. 323, it seemed to be conceded by counsel that the probate sale was void, and the opinion of the court assumes that as conceded.
Dissenting Opinion
dissenting.
The opinion of the majority of the court makes all proceedings in the Probate Court ex parte in so far as they affect the rights of minors. If the minors have guardians, their guardians are to be summoned, unless they be personally interested. If they have no guardians, or their guardians are personally interested, then there is service of process upon nobody, — save, perhaps, upon that man of straw, a guardian ad litem.- It follows that, whether the proceeding be to sell the minor’s own
I feel quite certain that our Probate Court system has not been generally considered, from the adoption of the Code of 1857 to the present day, as being wholly ecc parte as to infants. It is true that nowhere in the Probate Court chapter is there any allusion to serving process upon a minor. It is always with reference to service upon the guardian, and never with reference to the minor, that the law speaks ; but it is equally true that the same thing characterized the act of 1846 (Hutch. Code, 728) ; and yet two years before the adoption of the Code of 1857, in the case of McAllister v. Moye, 30 Miss. 258, the High Court of Errors and Appeals had declared void a sale of land in which a minor was interested, because he was not personally served. With this construction affixed on the act of 1846, it was substantially reenacted in the Code of 1857. I do not think I can be mistaken in saying that from that time to the present it has been generally, if not universally, considered as necessary to cite an infant whenever, in the Probate Court, his property was to be sold, and to regard as defective all titles where this had not been done. Even if the decision in McAllister v. Moye was originally wrong (which I do not admit), I regard it as unwise at this day to overturn it.
I have said that nowhere in the Probate Court law was there ■ any provision for citing the minor, and that the law required the guardian only to be summoned, if there was one, and if .not, there was no requirement in express terms for citing
So, also, in Brown v. Levee Commissioners, 50 Miss. 468, laws which undertake to perfect tax-titles by proceedings in chancery were declared unconstitutional because they failed to provide for the service of process upon the defaulting owner ; and this, too, notwithstanding the argument was earnestly pressed that it was purely a proceeding in rem, and in aid of the public revenue. This seems to me a most conclusive authority against the opinion of the majority of the court.
I concur in so much of the opinion of the court as announces that the Probate Court chapter constitutes a complete system in itself, and that, resort should be had to no other chapter, either as regulating the service of process or for any other purpose. I think this is demonstrable from an inspection of the chapter, and that it is demonstrated in the opinion of my associate, Judge Campbell.
I dissent from that portion of the opinion which declares that no notice to the minor is necessary, for these reasons : First, I doubt the constitutionality of sucha system of laws. Second, The High Court of Errors and Appeals have construed