75 N.C. 34 | N.C. | 1876
When infant defendants, in a civil action or special proceeding, have no general or testamentary guardian, before a guardianad litem can be appointed, a summons must be served upon such infants and a copy of the complaint also be served or filed according (39) to law. After the guardian ad litem is thus appointed in a special proceeding, a copy of the complaint, with the summons must be served on the guardian. All this does not give the court jurisdiction to proceed at once in the cause; for it is further provided, that not until after twenty days notice of said summons and complaint, and after answer filed, can the court proceed to final judgment and decree therein. Bat. Rev., ch. 17, sec. 59. See Allen v. Shields,
In this case the guardian ad litem was appointed before the infants were brought into court by summons. No summons or copy of the complaint was served on them until after the decree of sale. In law, they were undefended. Their rights and property were attempted to be adjudicated upon and taken from them under the sanction of law, but in violation of its letter and spirit. They had no day in court, and, as to them, the proceedings were irregular, and subject to be set aside.
It may be, and it is alleged, that inasmuch as the estate is insolvent, and the proceeds of the sale of lands must all be applied in payment of the debts of the intestate, the infants have no substantial interest to be affected by the decree, and are, therefore, not injured. But as they were not in court, and could not be heard, these alleged facts do (40) not judicially appear to us, and we cannot assume them to be true. What they may be able to show in defense of this proceeding, when they are properly brought in court, and are represented by a guardian, duly constituted, who will discharge his duty to them, we cannot anticipate. Sufficient for the day is the evil thereof.
This application is treated as a motion in the original proceeding for the sale of the land (which action is still pending), to set aside for irregularity the decree of sale and all subsequent proceedings. We have disposed of the case as far as the infants are concerned. We next proceed to examine it so far as it affects the widow herself. *45
She filed no answer in her own right, but answered in the right of the infants only. She alleges that she was not, at the time of her answer, apprised of the facts which constitute her equitable right to the largest tract of land, to wit: the Wilson tract. She further alleges that her answer to the petition for the sale of the land was filed for her by the attorney of the plaintiff; and that she was at the time so troubled and distressed in mind by the recent death of her husband, as to be disqualified for business, and thus was induced to assent to the answer, without a knowledge of her rights. These allegations are not directly denied. But it is denied that the counsel of the plaintiff acted as the are satisfied that no improper influence was intended. Yet the law defendant's counsel, farther than in drawing up her answer; and we are satisfied that no improper influence was intended. Yet the law does not tolerate that the same counsel may appear on both sides of an adversary proceeding, even colorably; and in general will not permit a judgment or decree so affected to stand if made the subject of exception in due time by the parties injured thereby. The presumption, in such cases, is that the party was unduly influenced by that relation, and the opposite party cannot take the benefit of it. It does not appear affirmatively in this case that Mrs. Moore, the defendant, was not influenced to her prejudice and thrown off her guard (41) thereby. The purity and fairness of all judicial proceedings should so appear when drawn in question.
Our attention has been called by the plaintiff, since the argument, toWhite v. Albertson,
PER CURIAM. Affirmed.
Cited: Molyneux v. Huey,