63 Ill. 502 | Ill. | 1872
delivered the opinion of the Court:
This was a suit in chancery, brought against the plaintiffs in error, and others, as the heirs of John A. Campbell, for the partition of a certain tract of land.
The bill alleges that the plaintiffs in error were minors. A summons was issued against but not served upon them. A guardian ad litem was appointed for them, who filed a formal answer.
In order that a decree shall affect infants, they must be served with process. Hickenbotham v. Blackledge, 54 Ill. 316 ; Fischer v. Fischer, ib. 231.
• The decree against the plaintiffs in error without the service of process upon them was erroneous.
There is no proof in the record, nor is it found by the decree, that the ancestor of the defendants died seized of the land, or that the defendants had any interest therein. To support a decree against infants, the material allegations of the bill must appear to have been proved, either by the finding of the court in the decree or by evidence preserved in the record. This is the settled and familiar rule of the court.
There was error in directing the commissioner for the sale of the land to first pay out of the proceeds of such sale the costs of the suit, including attorney’s fees, and in the approval of the report of the commissioner of the payment of $25 attorney’s fee. The statute allowing the taxation of a solicitor’s fee in proceedings for the partition of real estate, was not passed until 1869, some time after the decree and said order of approval.
The decree is reversed and the cause remanded.
Decree reversed.