Sconce v. Whitney, 12 Ill. 150 (1850)

Dec. 1850 · Illinois Supreme Court

12 Ill. 150

Harrison Sconce et al., Pltffs in Error, v. James W. Whitney, admr, &c., Deft in Error.

ERROR TO PIKE.

In chancery, the summons mu~t be served by copy.

Where the complainant chooses to proceed against infants under the statute, without service of process, it is the duty of the Court, to exact of the guardian a vigorous defence of their interests, and it is wrong to take a bill for confessed agaiust them, upder any circumstances.

The hill in this case was filed to procure the re-conveyance of certain lands. The respondent died after the hill was Med, and proceedings were had against his survivors, and a decree entered upon the prayer of the hill in favor of the complainant. The heirs of the respondent, some of whom were minors, were never served with process, nor were they represented in the case. The widow of the first respondent married Sconce, one of the plaintiffs in error. The process was served upon one of the respondents hy copy, and upon others hy reading. The' decree was-rendered by Minshall, Judge, at the March term, 1850, of the Pike Circuit Court. A guardian ad litem was appointed for the infants, who did not appear or answer for them.

C. L. Higkbee and J. Sibley, for Pltffs in Error,

There ivas no service of process on Mary Sconce, the wife of plaintiff in error. Service on the husband is not s sendee on the wife, where her property is the subject matter of the suit. 2 John. Ch. R., 139; 9 Yesey Ch. R., 485; 6 Madd. Ch. R., 172.

There is no appearance of the guardian, ad litem, of the infants before the final decree. No default or decree, pro confesso, can he entered against them. 3 Harrison, 603; 3 J. J. Marshall, 544; 5 Call, 459; 4 Gilman, 370.

Browning & Busbnell, for Deft in Error.

Caton, J.

There are objections to this decree which are insurmountable. Mrs. Sconce Avas never properly brought into Court. The most that can he said, is, that the process was served upon her hy reading, when the statute required that she should he served by copy. The infants Avere never served Avith process in any way, nor did their guardian file any answer in their behalf. The Court should have compelled the guardian to answer; and it was wrong for the Court to take the bill for confessed as to them, under any circumstances. It was the duty of the Circuit Court to see that the guardian performed his duty, for which service a provision is made for his compensation. Particularly where the complainant chooses to proceed against infants under the 47th Sec. of the 21st Chap. R. S., without service of process, as appears to have been the case here, it was the duty of the Court, to exact of the guardian a vigorous defence of the infants’ interests. In this case, so far from that having-been done, not even a formal answer by the guardian was required, but the bill was taken for confessed; precisely as if they were capable of protecting their own interests; and there was no duty resting upon the Court, or the guardian, to protect them. Were such a practice once sanctioned, there would be an end of all security to infants. If a complainant will take a decree under such circumstances, either through design or inadvertance, he must not expect to sustain it in this Court.

Let the decree of the Circuit Court be reversed, and the suit remanded.

Decree reversed.