Levystein Bros. v. O'Brien

106 Ala. 352 | Ala. | 1894

■ McCLELLAN, J.

— Inaction against infants, service of-summons must be had upon the defendant, as upon defendants who are sui juris; and such service is as efficacious in the former as in the latter case to give the court jurisdiction of the cause. Having thus acquired jurisdiction of the person of an infant defendant, it is the court’s duty to appoint a guardian ad litem to make defense for him ; but a failure to discharge this duty does not oust the court’s jurisdiction, which has already attached; but, to the contrary, if the case proceeds to judgment against the infant without such appointment, whether upon issue joined and trial had or upon the default of the defendant, such judgment though irregular and erroneous, and to be so declared upon appeal, is trot void, and is, therefore, not open to impeachment upon collateral attack. — 1 Freeman on Judgments, § 151; 2 lb. § 487; 10 Am. &Eng. Encyc. of Law, pp. 692-697; Brown on Jurisdiction, p 1Í3; Drake v. Hanshaw, 47 Iowa, 292 ; Joyce v. McAvoy, 31 Cal. 273; s. c. 89 Am. Dec. 172, and notes pp. 185 et seq.; Simmons v. McKay, 5 Bush.(Ky.) 25. This doctrine has been recognized by this court in the analogous case of a lunatic defendant.— Walker v. Clay, 21 Ala. 797, 807. And there is, we take it, nothing in the suggestion that, because of the mandatory terms of section 2579 of the Code, a judgment against an infant without the appointment of a guardian ad litem is not merely erroneous and irregular but void. This section is equally mandatory in respect of suits by infants — they “must sue by next friend,” yet it would scarcely be insisted that a judgment at the suit of an infant- in his own name against one sui juris would be void. The succeeding section — 2580—is equally mandatory in form in respect of lunatics, but, as we have seen, judgments against lunatics are not void though this mandate has been disregarded. And a reference' to the authorities cited above shows that under equally mandatory statutes in other States, the ruling has been that a failure to appoint a guardian to defend for the infant is, at most, reversible error and not matter for impeachment of the judgment except upon direct assault.

:In- chancery, infant defendants can only be brought in by service upon their parents or either of them, if in life, or upon their general guardian, in case the parents are dead ; provided such parents or guardian are not adversely interested, and in this latter case, or if there be no parent or guardian, then upon the infant personally if over fourteen years of age, &c. &c. — Code, p. 814, K. 23. Hence,' what is said in Daily’s Admr. v. Reid, 74 Ala. 415, 417, as to the invalidity of a decree pro confesso against an infant has no application to a judgment at law on personal service against an infant defendant, especially in view of the doctrine there announced that the chancery-court “is the guardian of all infant litigants before it, and will permit no such irregularity and error [as the taking of a decree pro confesso against an infant], to pass iinredressed.” Nor was it intended by this language of the court in that case, as counsel insist, to convey the idea that the substantive rights of an infant stood upon a plane different from and higher than the rights of persons sv,i juris, or were to be adjudged by a different standard, but only that the court would so far act as his guardian as to see to it that his abstract rights were properly presented to’and represented before the forum of conscience, but ihis is notto say that a court of equity, any more than a common law court, when the claim of the infant is fully presented, would grant any other relief on the merits thereof than an adult litigant would be entitled to on the same facts. It is, therefore, quite an error to suppose that chancery will enjoin a judgment at law against an infant which is not void and merely irregular and erroneous on the theory that it is the guardian of all infant litigants, when it is without competency to enjoin such a judgment against a person of full age. The well settled law is that chancery has no jurisdiction to enjoin any judgment at law for irregularities attending, and errors committed by the court in, the rendition thereof, unless such irregularities or errors were of a character to avoid the judgment ipso furto; a merely erroneous and irregular judgment whether against infants or adults will not be enjoined; a void judgment against either will be. We have seen that the judgment sought to be enjoined here was of the former class ; it was irregular and erroneous but not void. This appears by the bill. And this is the only ground upon which relief by injunction is sought: no surprise, accident, mistake or fraud is alleged. The bill was, therefore, without equity. The court erred in overruling the motion to dimiss for want of equity, aud also in overruling those assignments of demurrer which went to the point we have been considering. — 2 Freeman din Judgments, §§ 489, 513 ; 10 Am. & Eng. Encyc. of Laiv, pp. 889, etseq.) 12/6.p.l47a; Collier & Wife v. Falk, 66 Ala. 223, 228 ; Murphree v. Bishop, 79 Ala. 404 ; Preston v. Dnnn, 25 Ala. 507.

It may also be that even had this judgment beQn void, complainant’s remedy against it was not by bill for injunction, though as, if void, it is not so upon its face, we have proceeded upon assumption that equity would enjoin it had. it been not merely irregular but wholly invalid .

The decree of the city court must be reversed ; and a decree will here be entered sustaining the demurrer, and the motion to dismiss the bill for want of equity, and dismissing the same.

.Reversed and remanded'.