Timmons v. Timmons

6 Ind. 8 | Ind. | 1854

Davison, J.

Wingate Timmons, administrator de bonis non of the estate of Stephen Timmons, deceased, filed a petition alleging, inter alia, that he had discovered the insufficiency of the personal assets belonging to said estate to pay the debts outstanding against it; that the intestate died seized of a tract of' land (describing it) situate in Tippecanoe county, worth 400 dollars; and that, at his death, he left the following named heirs at law, viz., James, Thomas, Abram, Henry, Jesse, and Amelia Timmons—the said Amelia being a minor. The petition prayed the Court to order a sale of said land in the mode prescribed by the statute, and for general relief, &c. Upon final hearing, the Court decreed in accordance with the prayer.

J. Pettit and S. A. Huff, for the plaintiffs. D. Mace and W. C. Wilson, for the defendant.

The record shows that Amelia Timmons appeared to the petition by an attorney. This was error. “ An infant can not appear or plead by attorney.” 2 Johns. 192. Moreover, the act which authorized thése proceedings required the Court, “before hearing such petition,” to “appoint some suitable and discreet person the guardian” of such minors as might be parties, “for the sole purpose of appearing for them and taking care of their interest in the . proceedings.” R. S. 1843, c. 30, s. 226.

For the reason that no guardian was appointed for Amelia Timmons, the decree must be reversed ⁽¹⁾.

Per Curiam.

The decree is reversed with costs.

(1) As to the rale of decision whore there is an attempt, in a collateral proceeding,to set aside an administrator’s sale of real estate, for want of proper-notice of the application to sell, see Doe v. Harvey, 5 Blackf. 487; Thompson v. Doe, 8 id. 336; Doe v. Harvey, 3 Ind. R. 104; Doe v. Anderson, 5 id. 33.