| Ga. | Jan 12, 1912
(After stating the foregoing facts.)
In an equitable action a final decree was rendered, declaring certain land to belong to the complainants and enjoining the defendant, his guardian, and all persons acting for him, from claiming any of it or disparaging the plaintiffs’ title by any claim of title to the land. The defendant thus enjoined was a minor, over fourteen years of age, and approaching his majority. Ilis guardian was made a party with him, and a guardian ad litem appointed. After becoming twenty-one years of age, he brought suit to recover an undivided interest in land involved in the former suit. Proceedings were instituted to attach him and his attorneys for contempt in violating the injunction. The only response was that the former decree was a nullity for want of proper service, and
An entry of service is the usual evidence that service has been perfected. An adult may acknowledge service or waive it. A minor defendant can not bind himself by an acknowledgment of service. In the absence of any statutory provision as to service on a. minor, there is no little conflict of authority as to what is void and what is voidable. Many authorities hold that a judgment or decree against a minor is voidable, but not void. Porter v. Robinson, 3 A. K. Mar. (Ky.) 253 (13 Am. D. 153, 159, note); 10 Enc. Pl. & Pr. 600, 641 et seq.
Where a statute requires personal service on a minor, it must be followed. In this State, prior to 1876, it was the practice in equity cases to appoint a guardian ad litem for a minor defendant without service on such minor personally; and service on such guardian ad litem was treated as sufficient. Adams v. Franklin, 82 Ga. 168, 176 (8 S.E. 44" court="Ga." date_filed="1888-11-21" href="https://app.midpage.ai/document/adams-v-franklin-5563284?utm_source=webapp" opinion_id="5563284">8 S. E. 44). In that year an act was passed in which provision was made as to the mode of service of writs, petitions, citations, and other legal proceedings on minors. After prescribing the method of service upon minors under fourteen years of age, it declared as follows: “If the minor is over fourteen years of age, service may be made by delivering to him personally such copy. When the returns of such service are made to the proper court, and order taken to appoint said minor a guardian ad litem, and such guardian ad litem agrees to serve, all of which must be shown in the proceedings of the court, then said minor shall be considered a party to said proceeding.” Civil Code (1910), § 5565.
Tested by these principles, how stands the case under consideration? Process was prayed both against the minor and his guardian. There was an entry of service by the sheriff on the guardian. No entry by the officer appeared in the record as to service on the minor. If the record were entirely silent on this subject, under the decisions above cited, after the rendition of the decree a presumption of service on the minor would arise, though it would not be conclusive. But the record is not wholly silent on the subject of service upon the minor. It was recited in an order that it appeared to the court that the minor and his guardian had each been served with copy and process “duly and legally,” and thereupon a guardian ad litem was appointed to represent the minor, and accepted the trust. It is true that, after such appointment, both the minor and the guardian ad litem signed an acknowledgment of service and waiver of process and further notice, and a request that the court try the case at a certain term of the superior court; but this does -not necessarily prove that the prior recital of service on the minor was untrue. The final decree recited that the minor defendant by counsel, his guardian ad litem, his general guardian, and his father were all present defending the-suit; and that, after the submission of evidence, the argument .of counsel, and the charge of the court, the jury rendered a verdict in favor of the plaintiffs. It can not be declared that the verdict and decree thereon were mere nullities on their face.
On the hearing of the attachment proceedings the respondents introduced certain affidavits, in which the affiants declared the former proceedings to be void for want of proper service on the minor, and used the expression that the minor “having never been served with a copy of the petition in said case, or with process attached to such copy, by the sheriff, as required by law, the said Taliaferro was not before the court at the time the said decree is said by petitioners, and appears, to have issued.” But in connection with these affidavits the bill of exceptions states that “It was admitted by respondents, upon the trial of said case, that [such-affidavits] were not offered to prove any fact dehors the record” in the former case. They apparently amounted to no more than
From what has been said above it will be seen that the former decree does not appear to be a nullity; and the presiding judge did not err in holding that the respondents failed to show that they were justified in disregarding it.
It must be borne in mind that what is said as to serving a minor and bringing him before the court before rendering judgment against him has reference to judgments following service. It does not affect the power of a judge to issue a temporary restraining order, or authorize a minor to knowingly disobey it on the ground that formal service has not been made, any more than it would authorize an adult to do the same thing. Minority may be used to protect the minor, but it furnishes no license to him to commit irreparable injury upon another.
Judgment affirmed.