54 Ill. 231 | Ill. | 1870
delivered the opinion of the Court:
This was a bill in cBancery, in the St. Clair circuit • court, filed by John Fischer against Margaretha Fischer and her infant child, not named, the scope of which was, to declare a trust in this infant of a certain lot of ground in West Belle-ville for the use and benefit of complainant.
The defendant Margaretha was duly served with process, and her default entered. A guardian ad litem was appointed for the infant, who, in pursuance of a rule for such purpose, filed the usual brief answer, and the cause referred to the master in chancery to take testimony, who made his report of the evidence, whereupon the court decreed as prayed.
To reverse this decree, the infant defendant, by his next friend, brings the record here by writ of error, and assigns for error, want of jurisdiction of the person of the infant, he not having been served with process; permitting the complainant to be a witness in his own behalf, on his own motion ; receiving the paper as evidence purporting to be the deposition of Christina Wiemuller; rendering a decree against the infant defendant without sufficient proof, and last, that the decree is unsupported by the evidence.
No brief has been furnished by the defendant in error, and we have considered the case ex parte, and with regard alone to the infant defendant, and to the service of process upon him.
The return of the sheriff is as follows: “ Served by reading and delivering a true copy of the within to Margaretha Fischer, and leaving a true copy of the within for the infant not yet named, with a white person over the age of fourteen years, at the usual place of abode of said infant, first explaining the contents of this writ. October 16, 1867.” That this service is not in conformity with the statute, so far as the infant is concerned, is very apparent. It does not state that the white person with whom the copy was left was a member of the family in which the infant dwelt, nor that the contents of the paper were explained to such person. To whom the contents were explained by the officer is not stated. The court can intend nothing in support of a return like this.
A guardian was appointed by the court for this infant, and he put in a mere formal answer, but did not defend vigorously the interests of the infant. He did not attend the examination of the witnesses, or make objection to the testimony of complainant or to the affidavit of Christina Wiemuller, taken without authority, and by a. person having no power to take it. The record does not show that M. W. Weir was appointed a special master by the court to take testimony, and it was not competent for the infant to consent thereto, nor for the guardian ad litem in his behalf. This person can not admit away any of the rights of an infant, or bind him by consent to an act which may be prejudicial to the infant. The record seems to show a contrived case by which this infant, “ muling and puking in his nurse’s arms”—the only heir-at-law of his deceased father, in whom the legal title to this lot had been legally placed—was to be deprived of his estate by the combination of complainant and his mother, Christina Wiemuller. The complainant was not a competent witness to prove his own case, not having been called by the adverse party to testify. He was incompetent at common law—Mixell v. Lutz, 34 Ill. 382—and also by the terms of the second section of the statute relating to the competency of witnesses in civil cases—Sess. Laws 1867, p. 183—not being within any of the exceptions of that act. The court erred in rendering a decree on complainant’s testimony. The testimony of the other witness was not taken under the order of the court, and the guardian ad litem had no power to consent to its being taken as against the infant.
The decree must be reversed and the cause remanded.
Decree reversed.