23 Ill. 445 | Ill. | 1860
The question presented by this record is, did the Circuit Court of Pike county have jurisdiction of the persons of the minor heirs of Wadsworth, so as to pass a decree against them for the sale of their land, to pay their ancestors’ debts, as by the order of that court of April term,1822, it attempted to do ?
That court being a court of general and unlimited jurisdiction, every reasonable intendment is to be made to sustain its acts, judgments, decrees, and orders, when it is shown jurisdiction attached in the particular case. This is a well settled doctrine of the books, and of all courts.
By force of it, considering the lapse of time since the order (more than thirty years)—the destruction of the records and files of the court by fire—the death of the principal actors in these proceedings, we would be induced to presume much to sustain this order of sale. But when we see the final order of the court decreeing a sale of the land, in which it is recited that notice of the application was only served upon the infant heirs of the decedent, when the statute required service upon their guardians, or persons having control of them, and no guardians ad litem appointed for' them by the court, we are constrained to say, the court had not obtained jurisdiction of the persons of the minors, in the mode pointed out by the law.
The object of such service is made apparent from the last clause of section 2 of the act, “ And it shall be the duty of any guardian or guardians, or persons having the care of any such minor or minors, on receiving such notice, to appear and defend on behalf of said minor or minors.” (Purple’s Real Estate Stat. 439.)
This duty, it is true, is of imperfect obligation, which the guardian or curator could not be compelled to perform, and failing to notify him, but notifying the infant heirs in person, followed by the appointment of a guardian ad litem, over whom the court would possess full power, we would be inclined to hold a substantial compliance with the requirements of the statute.
Neither having been done in this case, the jurisdiction of the court did not attach. Its power was not properly called into action to deliberate, to decide. This renders the order, and all proceedings under it, void, and it can be attacked anywhere. Herdman v. Short, 18 Ill. R. 60.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.