1 Handy 287 | Oh. Super. Ct., Cinci. | 1854
The papers in this case have been submitted to me for a judgment, directing the sale of property. It stands on default as to all the defendants except an infant, for whom a guardian ad litem was appointed a few days ago, and who then filed an answer.
The summous issued in this case, very properly showed on its face that James McDonald, one of the defendants, was a minor. The petition properly states the age of the minor, and shows that he was under fourteen years of age, and it would have been better to have embodied a statement to that effect in the summons. The minor being under fourteen years of age, the Section of the Code that I have cited, is imperative, that a service on him alone, which is all the return of the Sheriff shows, cannot be deemed sufficient. Such a return could only be made sufficient, by an accompanying statement that there could be found no guardian or father, no mother or person having the care of the infant, or with whom he lived. I hope there will be no case in which such a return can be truly made.
According to Section 82, of the Code, the appointment of a guardian for the suit, cannot be made until after service of the summons in the action, as directed in the Code. There having been, in my opinion, no such service, I am compelled, not only to refuse to enter a judgment which may affect the rights of the infant defendant, but the order appointing a guardian for him, entered on a former day of term, must be set aside as having been improvidently made.