Ingersoll v. Ingersoll

| Miss. | Oct 15, 1868

Peyton, J.,

delivered the opinion of the court.

The record in tins case shows that Charles J. Ingersoll filed his bill in the Chancery Court of Yazoo county against Sarah G-. Ingersoll, administratrix, and Charles J. Ingersoll, administrator, of the estate of John Ingersoll, deceased, and Sarah Gr. Ingersoll, widow of said John Ingersoll, and the said Charles J. Ingersoll, Jr., and William K. Ingersoll, Helen Ingersoll, Mary Ingersoll, and Caroline G-. Ingersoll, infant heirs-at-law of the said John Ingersoll, deceased, to foreclose certain mortgages executed by the said John Ingersoll and wife, to secure the payment of a large amount of indebtedness to the complainant, and to subject certain real estate therein specified to the payment of said indebtedness. That during the pendency of the suit, the complainant, and Mary Ingersoll, one of the defendants, departed this life, and the suit was revived and prosecuted in the names of the appellees, as executors of the last will and testament of the said Charles J. Ingersoll, deceased. That Helen Ingersoll was a non-resident of this State, and resides in New Orleans, in the State of Louisiana. That a guardian ad litem was appointed by the court at the November Term thereof, 1866, for Helen Ingersoll, and Caroline G. Ingersoll, infant heirs of the said John Ingersoll, deceased, and that at the same term, the bills of' complaint were taken as confessed against all the adult defendants for want of an answer. The guardian of said infant defendants answers and “ says that he admits the allegations of complainants’ bill so far as he knows, but that he knows nothing of his own knowledge,” and calls for strict proof of the allegations of the bill. A commissioner was then appointed to take an account of the amount of money due the complainants, and upon the confirmation of the report of the commissioner, a final decree was rendered by the court to sell certain lands specified in said mortgages, to pay the amount found due the complainants, if the same was not paid within thirty days from the date of the decree. From this decree the appellants appeal'to this court, and make the following assignment of errors:—

1. The court erred in rendering a decree in favor of the complainants.

2. The court erred in appointing a guardian ad litem for the minors.

‘ 3. The process had not been duly served upon Llelen Ingersoll, a minor, and publication and notice to her as a non-resident had not been duly made, to authorize a decree against her or the appointment of a guardian ad litem for her.

4. There was no evidence taken to justify a decree against the minors.

5. There was no notice of the time and place of taking the account by the commissioner:

6. The answer of the minors admitting no liability, it was necessary to prove the claim set up in the bill, and there was no proof either before the court or the commissioner.

7. Process was not duly served and publication made so as to justify a jpro confesso against the adults, and the appointment of a guardian ad litem for the minor defendants.

8. The decree is without evidence to sustain it against either the adult or minor defendants.

We will consider the second and third assignments of error together, as they present the questions of the sufficiency of the service of process upon Caroline G-. Ingersoll, the resident minor, and of the publication and notice to Helen Ingersoll, the nonresident minor, to authorize the appointment of a guardian ad litem for them, or to justify a decree against them.

The process against Caroline Ingersoll was returned, by the sheriff of Yazoo county, executed on the 5th day of November, 1866, by delivering a copy to her. This is not in accordance with the requirements of the statute. Article 64 of the Eevised Code, 489, provides that, if the defendant be an infant under tbe age of twenty-one years, the process shall be served on the infant personally, and on his or her father, mother, or guardian, if he or she have any in this State. And the statute provides that no appointment of a guardian ad Utem shall be ■ made for an infant, except on the application of such infant, until after process shall have been returned executed, or proof of publication made. Eev. Code, 548, art. 52. This provision clearly contemplates that the process as to the resident infant must be executed, and the proof of publication as to the nonresident infant must be made, in compliance with the requisitions of the law, in order to authorize the appointment of a guardian ad litem. The process that was served on Caroline Ingersoll should also have been served on her father, mother, or guardian, if she had any in the State, and if not, that fact should be stated in the return, in order to justify the appointment of a guardian ad litem for her.

The statute of 1862 (Pamphlet Acts, 264) makes it the duty of the court making any order of publication against an absent .or non-resident party to require the person applying for such order to state in. Ms affidavit the residence of such absent or non-resident party, if the same can be ascertained, and such court shall direct the clerk to transmit by mail a copy of such order to such absent or non-resident party. The affidavit shows the place of residence of the non-resident defendant, Helen Ingersoll. The order requiring publication to be made should have contained a direction to the clerk to transmit by mail a copy of such order to the non-resident defendant; and, having failed to do so, the publication falls short of the requirements of the law, and is, therefore, insufficient to justify the appointment of a guardian ad litem for Helen Ingersoll, in the absence of any evidence that a copy of the order of publication had been transmitted to her in pursuance of the statute.

■ The fourth assignment of error is well taken. It is a well-settled doctrine that there can be no valid decree against an infant by default, nor on his answer by his guardian; but the plaintiff must prove his demand in court, or before a master. No decree can be taken against an infant on his own admissions, or the admissions of his guardian ad Utem/ but every allegation to affect him must he duly proven. Tyler on Infancy and Coverture, 172, 173; Story’s Eq. Pl. 668, § 871; Mills v. Dennis, 3 Johns. Ch. 367" court="None" date_filed="1818-06-15" href="https://app.midpage.ai/document/mills-v-dennis-5550284?utm_source=webapp" opinion_id="5550284">3 Johns. Ch. Rep. 367; Massie’s Heirs v. Donaldson, 8 Ohio, 377. A court of chancery will not decree against infants without full proof, though their guardian ad Litem confess the ground of action. Walton and. Heirs of Payne v. Coulson, 1 McLean’s Rep. 120, 134; Chalfaut v. Monroe, 8 Dana, 35; Hite’s Executors v. Hite’s Legatees, 2 Rand. 409; James and Wife v. James and others, 4 Paige Ch., 115" court="None" date_filed="1833-07-01" href="https://app.midpage.ai/document/james-v-james-5548031?utm_source=webapp" opinion_id="5548031">4 Paige, 115, 119; Stephenson v. Stephenson, 6 Paige Ch., 353" court="None" date_filed="1837-03-07" href="https://app.midpage.ai/document/stephenson-v-stephenson-5548273?utm_source=webapp" opinion_id="5548273">6 Paige, 353.

The answer of an infant amounts to nothing. It cannot be read against him, nor can it be excepted to. It is to be considered not exactly as a defence, but rather as the appearance of a mere formal party before the court. The plaintiff must prove his case. 1 Hoffman’s Ch. Pr. 233. It is considered a pleading merely, and not an examination for the purpose of discovery. It is not evidence in Ms favor, therefore, although it is responsive to the bill, and sworn to by the guardian ad litem. Nor can it be read against him. 1 Barbour’s Ch. Br. 150. As the record in this case does not contain the evidence upon which the court or commissioner acted, the decree cannot be sustained.

Even if the service of process on the infant, Caroline GL Ingersoll, and the publication and notice to the non-resident infant, Helen Ingersoll, had been sufficient, the decree could not be sustained without an answer of the infa/nts by their guardian ad litem, and full proof made of the complainants’ claim. In this case there was neither an answer of the infants nor proof taken to establish the claim. The answer of the guardian ad litem is his own answer and not that of his infant wards by him. The cause, therefore, was not in a condition for final hearing at the time the decree was rendered. These views dispose of the first, sixth, seventh, and eighth assignments of error.

We now proceed to the consideration of the fifth assignment of error. In suits to foreclose mortgages and deeds of trust, it is unnecessary for the commissioner to give notice to the parties of the time and place of taking the account. Rev. Code, 547, art. 48; Kilcrease v. Lum & Wife, 36 Miss. 569" court="Miss." date_filed="1858-10-15" href="https://app.midpage.ai/document/kilcrease-v-lum-8257467?utm_source=webapp" opinion_id="8257467">36 Miss. 569. There is no error, therefore, in the failure of the commissioner to give notice to the parties of the time and place of computing amount due.

Where a decree has been rendered in the Chancery Court against adults and infants, on pro confesso against the former, without proof, and this court on that account reverses the decree, the pro confesso as to the adults will not thereby be set aside. The cause will proceed, in the court below, as if no decree had been pronounced, leaving it to the court to set aside the pro confesso or not, according to its legal discretion.

The decree will be reversed and the cause remanded.