10 Ky. Op. 333 | Ky. Ct. App. | 1879
Opinion by
As to the children of Robert A. Johnson we think it is clear that the service of process was sufficient. It is true he was a party, and the service on him was as a party, but this made no difference. The sole object of the requirement that process against infants under 14 years of age shall be served on some third person was that notice of the suit should be brought to some one who would feel sufficient interest in the infant to appear and make defense of his interests, or cause it to be done. The summons in this case notified the father that his children had been sued, and thus accomplished all that could have been accomplished if he had 'not been a party.
In Shaefer v. Gates, 2 B. Mon. 453, process was not served on the infants in person, but was served on their guardian ad litem, who was not a party. The question was whether that substitutionary service was sufficient, and the court held it was not. Denny had been appointed guardian ad litem after the process was issued, and had not accepted. He occupied no relation to the infants that made it his duty to defend for them or which authorized service to be made on him for the infants. But in this case Robert A. Johnson was one of the persons designated by law to be served with process against his children,' and stood in the same position in that regard that the guardian ad litem would have occupied if he had accepted the trust, and had then been served for the infants, which, according to the doctrine of Gates and Bustard would have been good service.
As to the children of Mrs. Johnson by her former marriage there is more room for doubt, but we incline to the opinion that it might be presumed that their step-father had the care and control of them.
In our opinion the service of process upon the infant and his father or guardian in such a case is sufficient, and the judgments appealed from are affirmed. ""