*1 455 1885. StajsOiIjL Gay Gay. asd v. Administrators, GAY, et D. v. JERE. als.
S. T. and LEWIS GAY STANCILL Probate Court— Irregular Judgments Evidence — of —Jurisdiction Service—Notice. Acceptance of Summons — irregularity, and kin- judgments set ior other motions of 1. In motions to asido strictly nature, the not so adhered to as in the trial dred rules evidence are by jury. a the Court can hear evidence which of an issue such eases arriving just reasonably at it in a conclusion. is calculated aid parties brought By summons, accepting are into court and 2. service of action, proceedings, and are and must take notice of made judgment of the Court. bound presumed all which Litigants to take notice of that is done actions to 3. are parties. are having necessarily any complaint been is not A without filed 4. rendered by consent, if subse- void. is valid rendered or ratified Such quent to it. assent moving party judgment will irregular An not be set aside as of course. alleged adversely irregularities in a material affect them must show seeking respect, diligence in due relief. have exercised probate proceedings to had set- The former courts of exclusive persons. tle estates of deceased 231; University C., 122; (Mayo Whitson, Jones, Futrell, Johnson v. 86 N. v. v. 176; C., Lassiter, C., Pope, C., Sneed, 38; 22; Hunt Vick 81 N. v. v. ap Foard, Ibid., Mayfldd, Heilig 74 N. cited Hendrick v. proved). set a rendered a MOTION aside special proceed- clerk, before on from decision of heard, Shep- at Halifax Court. Term, 1883, Fall herd, Judge, facts His found : Honor following S. T. Stancill and March, 1871, 1. That on the 25th day a. filed Stancill, D. as administrators c. t. of Green L. Gay, and on tbe same administration, their final account clerk be issued caused summons to against day That of the summons was defendants. service present Ida tbe A. infants, all tbe three accepted by except D. and Mattie That no service Stancill, Samuel Long. Long 45tí IN THE SUPREME COURT.
Stakcim. ahd *2 was ever made on these notice reference infants, except the of a That ad litem. no ad appointment guardian guardian litem was ever for the infants these appointed during proceedings.
2. That the summons was returned after the of ser- acceptance vice due time and before the thereof, rendition of the decree, and the the before statement of account. defendant,
3. That the the during proceeding, except I). within Mattie lived the county within Long, Northampton, from two to thirteen miles of the of the office clerk.
4. that a There was no evidence was ever filed in complaint the recital in said but the decree, Court proceeding, except day finds that the account filed said administrators on the of the summons was used the conduct of the issuing during the; and formed basis thereof. 5. An was Jere. and and attorney Gray employed wife, rep- resented them the Before the decree was made he proceeding. examined the account stated and clerk, his satis- expressed and that decree therewith; faction was made accordance with said That account. the other defendants no employed the clerk counsel, but understood that same was act- attorney for all the defendants. That interests of the distributees, were I). that S. E. and identical, Mattie except Long Long repre- sented one-half of a share each.
7. That exclusive of recitals decree, of the there is not sufficient evidence that formal notice was of the statement- given court, of the but the finds that while account, no formal notice was the defendants were informed of all fully given, proceed- ,was in said cause, after the account stated and before ings decree were advised they entering fully same, and of the shares to which each entitled would be under said account, made no thereto that the objection decree made the said account, according plaintiffs settled with, served, took from the defendants receipts except Jere. such account and with full Hay, decree, according Stanoill axd Gat v. Gat. The infant defen- of all the the cause. proceedings
knowledge dants were also settled with does decree, the satisfaction of fully informed of the in said cause. That Jere. Gay wife were settled with the administrators on the partially basis of the account decree.
8. That the does record not show that attorney appeared for the defendants.
9. That final decree Albertson, approved by Judge that his is signature approval genuine.
10. That the filed at the account time of the summons, issuing *3 differed and which the decree stated, on was rendered, from in no other than the the omission of of certain respect proceeds real estate and which the interest, contend w'ere not plaintiffs in that account. proper charges
11. That the decree was made at the instance of the clerk. 12. That the was made the motion on 16th of September, and that the decree was rendered in 1874. these fads, Upon His Honor rendered the aside as to judgment setting judgment the infant and it to set aside as to the achdt refusing . defendants.
From this all the judgment parties appealed. T. Mason,
Messrs. W. T. N. Hill and Mullen & Moore for the plaintiffs. R. B.
Messrs.- Peebles and Battle & Mordeeai the defend- for ants.
ADULT DEFENDANTS’ APPEAL. J. The moved to set aside a final appellants MerriMON, in a in the the judgment special court of clerk brought of the of to settle Superior county Northampton, and distribute the estate the hands the adminis- appellees, trators. The motion was based grounds alleged COURT. IN THE SUPREME
Stakoill and to it. leading irregularity judgment ascertain it necessary became merits, In its passing upon evidence, mainly consisting The clerk heard facts. important refused to set the facts, found of numerous affidavits, having Thereupon accordingly. aside, judgment gave judgment clerk Court. Superior present appellants appealed and his the evidence record, sent that court the including up of fact. findings modi- evidence, considered Court the judge clerk, fact gave
fied some of findings the case. of the clerk, remanding affirming . that the of error, judge assigned grounds case the whole evidence, heard and considered improper the clerk. affirmed to evidence We are of respect exceptions opinion the evidence Most of objected rest no substantial ground. had much and could not much to was not of importance, an judge as it was considered intelligent weight, especially Some parts who its relation proper application. considered he did not con- states, these, irrelevant, judge of were rules of evi- the technical sider. While, perhaps, some actions, might the trial of parts dence applicable hear con- it was not improper still strictly competent, *4 us. it like that before sider a motion upon It summarily. questions The motion was heard pi’esented and documentary affidavits fact the to be tried by judge the an or action, was to rights evidence. The not try object had done itself what the court in ascertain the but to it, parties to the and what in or omitted do a to special proceeding, the in sense, an Besides, it in it. important had done and about dis- to sound see, just as we shall was addressed, motion court. cretion of are not so strictly evidence the rules of
In such application or when actions trial in cases of by jury, arc adhered to as they (cid:127)
Stancilx. the dis- so, when their merits. This is are tried especially in summary pro- is invoked; the court- generally, cretion of in motions chancery, such as interlocutory applications ceedings, and orders of attachments aside in to set grant actions judgments, after con- in criminal satisfaction, to enter arrest, proceedings, or show matters prosecution to viction, aggravation the defendant- mitigation which is rea evidence, hear
In the court oases, may any It to has to inform its right calculated sonably v. Whitson, Jones, from source. Mayo draw evidence any pure Dr., 568; Chit. Cr. Tidd’s Dr., Ch. 231; Daniel, Chief-Justice Binn., 222, In Shortz Quigley, Law, an was “The motion to said, open judgment, Tilghman on execute a summary principles court, are not tied down to courts motions, these hearing equity. in trials them by jury, rules of evidence which strict govern the law prevents that their it is knowledge because presumed not strictly of testimony away their carried weight being legal.” that the Court be understood as do not mean to intimating
We statement or hear and consider every arbitrarily, may, it hear as made, may but only saying may suggestion and reasonably as is evidence properly produced such pertinent before it. to throw tends question light of the clerk deny- affirmed The Court properly than rather disorderly the motion. The proceeding in the course if there was some but irregularity irregular, as to it was not such it, leading was such and the conduct of appellants render void, it. them bound ” “ It the summons. service of each accepted them notice to formal, plainly gave strictly “ and answer complaint days,” court, twenty-one same, failed answer and that would be filed, the relief demanded the court for therein would apply plaintiffs *5 IN THE SUPREME COURT. Stanoidl
in it. was sufficient This to them into court and make bring them parties proceedings. By they compliance take notice of the agreed became subject the court in that behalf. Johnson v. jurisdiction Futrell, C., The court thus obtained were having jurisdiction, parties bound to take notice of what done in was the course of the proceed until final therein. It was their ing neglect their did The law not. at their folly, they them, charged to be watchful of their interest that peril, respect. University v. Lassiter, 83 N. 38 Freeman on sec. 142. Judgments, No nor is certain appears record, one was complaint filed. The clerk finds as one, a fact there was was lost. The finds that evidence this was Judge only recitals These recitals were evidence, But if conclusive. there no filed, this faxdt complaint alone did not render the void. The court having of the action subject it, parties latter consent to the of a entry might judgment by express or, one been it. agreement, having entered, assent to they might There is a in favor of the presumption regularity judg ment —that the court it in the course of or that gave procedure, consented it. Vick v. C., 22; Free Pope, man on secs. Judgments, 132, 135, 136. were not in court virtue of the only sum
mons, but it from the of fact the clerk and findings if there was not formal notice of the Judge, taking the account “the defendants (as contended), (the appellants informed were, of all the here) nevertheless, fully cause; said that after the account was stated, before the of the. entry decree, advised fully same, the share which each would entitled under account, made thereto; no the decree was made accord objection to said account, and the settled* plaintiffs (the appellees here) and took of the defendants Jere. served, Gay, receipts except *6 ARY 461
FEBEO Gay and Stancild and full decree, account with of knowledge in
all tlie the cause.” It also that Jere. and his wife received a of the share due them. were part They counsel, who examined represented proceeding as account settled and he his decree, satisfaction expressed therewith. The decree of vras entered on the 1st complained 1874, and May set motion to approved by Judge, aside was made 16th of more than 1882, September, eight years afterwards. it is not certain that there
Now, in irregularity course of the but if it be there in granted some the' were of all that respects, was done appellants cognizant in it, were informed as to the statement of they fully the account the final decree which it was adopted confirmed, pursuance with one deeree, they, exception, .that respect- received the decreed to and he received ively money each, a part of the share decreed he besides, to him, and, ;was represented by Such counsel. must be facts, deemed to they being all waived formal be bound the decree. irregularities, But there were irregularities' proceeding, affecting decree, the would seem not, they suppose, entitled to have it set aside on that as of account, course. case, such would behoove them to show the alleged affected them in a material
irregularities adversely respect, had, within a reasonable under they period circumstances, exercised due relief. facts make it mani- diligence seeking did fest that not exercise such reasonable they diligence. They familiar with the from the to the end beginning of it, received the under the final money decree, after more than that, before made their years eight elapsed motion. It- was on the suggested argument appellant’s counsel, court late clerk of the probate, Superior Court, had not special proceeding question. is founded on On the con- suggestion misapprehension. it seems that that court had exclusive
trary, original jurisdiction IN THE COURT.
462 SUPREME
Stanoill v. Gat. and Gat Const, of 1868; Art. sec. IV, proceedings. Id., Hen C., Hunt v. 176; Heilig Foard, Sneed, It seems that the statute drick v. Mayfield, that the ch. sec. Rev., contemplated 134, 147) (Bat. but this held other have like court Court should jurisdiction, wise, construction of effect, provi perhaps, proper giving *7 It that there are cited above. may be, sion of the constitution cases in which took juris reported original this as it the court of diction of such but be may, proceedings, in the case the motion had which jurisdiction probate certainly us before was made. be certified to the
There error. Let this Supe- is no opinion take future action accord- the end Court, rior court may to law. . Affirmed. No error. APPEAL. PLAINTIFFS’ against served judgment who never been 1. A rendered infant testamentary guar- guardian nor process, general or with and who have no , litem, dian ad is void. infants, give receipt money under does not vital- The ity They may amounts received be made to accountforthe in action. another against 38?, making judgments and certain other Code, infants 3. The sec. valid personally where, defendant, being parties persons, are not in cases any upon served, apply has never service to cases where there been does not any person infant, representing him. nor 344; Doyle Stallings Jones, Dev., 187; Gulley, 3 v. Harshaw, (Armstrong 1 v. v. ; C., 35; Young, Bullard, Young 91 N. Brown, Larkins 88 N. v. 72 393 v. approved). C., 359, cited case, as The same counsel appeared previous are same. facts infants and had substan- wei’e J. appellees
MerrimoN, affect it was tial interest which sought special pro- 463 Stanoili. v. Ga f n feeding thereon, to which the motion respect (cid:127)embraced in this made. It no summons in that was ever served them, nor was a guard- ian ad litem one of any for nor did appointed them, they appear, for nor did counsel nor was them, any defence made in their them or behalf. It is manifest so far them, was not purports apply only abso- irregular, void. lutely not obtain court did There appellees. no service them process nor was there personally, service,
constructive nor were into brought proceeding- law, or indeed, at all. any way recognized by Jurisdiction of obtained the court some party, way allowed by law, enable the is essential to court to a valid give judgment against him. v. 1 Harshaw, Armstrong Dev., v. Stallings Gulley, Jones, 344; Brown, C.,N. Doyle Larkins v. Bul C., 35; lard, 88 91 N. Young Young, C., 359. *8 issued to them the
Notice was counsel of the to appellants, a ad litem guardian for procure appointment themselves. This was without and had authority notice no sanction of law. a the absence or general testamentary was the guardian, duty of the the motion of court, upon any party to proceeding, a ad litem. The notice appoint mentioned seems guardian to have been served one of them; but this upon was not mate- it was it did because not rial, not nor process; be, purport ad, litem any guardian appointed.
The received the in the money appellees designated judgment, fund as shares of the due distributed, to them but it respectively, were not fully informed as to the nature of the and its does not their what were purpose; at the time they received is it ages respectively, nor money, material because the here, mere of it not inquire could receipt a life and effectiveness to void The give judgment.. object, only now is to set aside At time quash another IN THE COURT. SUPREME and Gat
Stanoill have to account for in another they may money them. received by Code, valid, statute, making judgments against §387,) {The in certain does cases, classes of not
infants other persons Its is to make valid “the in a case like this. purpose pro- apply an infant or actions, decrees against judgments” ceedings, not defendant, in cases where others, they, being parties But it not with summons.” does served a purport “personally when there actions render valid judgments infant defendant and none therein, an was no service or a at litem or testamentary his guardian, guardian general him, nor can it be construed to have such for appointed properly a did intend that against effect.. Legislature wherein he was not in an action or an infant special proceeding a but treated as should be defendant, made a defendant, party him. A statute with such effectual purpose rendered against the moral fundamental shock sense contravene right would men! of just
. error in the of the is no There of that Court- in of the Clerk respect reversing Let this be certified to that Court the infant opinion appellees. law. Affirmed. No error. DEFENDANTS’ APPEAL. INFANT ease This is appellees J. Mjgrrimojj, as error the Court assigning decided. They appeal, just them in its adverse to evidence findings heard improper *9 them. in a But, contingency, prejudice possible fact might, affirmed, in their favor has been questions was unneces- are immaterial seek present It case was cannot see necessary. indeed we sary dismissed. therefore must
It is so ordered.