Jackson v. Putman

• Decision Date: 12 November 1912
• Citation: 180 Ala. 39,60 So. 61
• Parties: JACKSON ET AL. v. PUTMAN ET AL.
• Court: Alabama Supreme Court

60 So. 61

180 Ala. 39

JACKSON ET AL. v. PUTMAN ET AL.

Supreme Court of Alabama

November 12, 1912

Appeal from Chancery Court, Lauderdale County; W. H. Simpson Chancellor.

Bill by Mattie Putman and others against Lula M. Jackson and others. From a decree overruling a demurrer to the bill, defendants appeal. Affirmed.

George P. Jones, of Florence, for appellants.

Paul Hodges, of Florence, for appellees.

SAYRE J.

This bill was filed by Mattie Putman, who is the widow of W. R Putman, deceased, for herself and his infant children necessity for the appointment or presence of an administrator being obviated by appropriate averments. Its purpose is to have a mortgage which had been executed by Putman in his lifetime to Andrew Jackson, since deceased, canceled because it has been satisfied, or, if it should appear that there remains a balance due thereon, to redeem. It shows that Lula M. Jackson is the widow of Andrew Jackson and the administratrix of his estate. She is made a party defendant as an individual and in her representative capacity, and there is a formal prayer for process against her in both capacities, as well as against another party defendant. The mortgagee's infant children, who are also his heirs, are severally named as parties defendant; but the absence of a specific prayer for process against them was pointed out in a demurrer which purported to have been filed by a guardian ad litem appointed for them. They now complain that the chancellor erred in overruling their demurrer.

A method of service upon infant defendants of summons to answer bills is prescribed by rule 20 of the rules of chancery practice (Code of 1907, p. 1533). Rule 23 regulates the appointment of guardians ad litem for infant defendants. The court of chancery is the general guardian of all infants within its jurisdiction, and has general authority to protect their rights by the appointment of a guardian ad litem; but an appointment without proper service and without compliance with the rules referred to is an irregularity which will suffice on appeal to reverse the final decree. Preston v Dunn, 25 Ala. 507; Bondurant v. Sibley, 37 Ala. 565. The transcript of the record in this case is incomplete in several respects. It fails to show a filing of the bill or service of process upon any of the defendants. It contains a copy of a notice to the guardian of his appointment by the court, but no order or decree of the court to that effect. Nor does the record purport to be complete. The register's certificate is that the transcript contains "a true and correct copy and transcript of all the proceedings on the several demurrers to the original bill and bill as amended." The amendment does not appear, nor any order allowing amendment. If, in this state of the record, we might assume that the chancery court proceeded in a proper way to the appointment of a guardian ad litem for the infant defendants after service upon them properly perfected, and further that counsel have discussed only rulings made in the court below on a record calling for such rulings, we should hold that there has been no error.

It is a general rule that none are parties defendant, though named in the bill, against whom process is not prayed. This, because in the stating part of his bill the complainant may name many persons concerned in the transaction upon which he claims relief, other than those against whom relief is sought, and it was the ancient practice to name the parties against whom relief was sought in the prayer for process only. As the Lord Chancellor said in Fawkes v. Pratt, 1 P. Wms. 593 "The plaintiff may complain and tell stories of whom he pleases; but they only are defendants against whom process is prayed." And in that case a plea was held good in which the defendant set up the fact that other necessary parties, though named in the bill, were not made defendants. Chancery Rule 17 prescribes that "the prayer for process or publication to answer a bill shall contain the names of all the defendants." We do not intend to detract from the utility or integrity of the rule. It will be observed in every orderly and carefully framed bill. Its neglect can only invite trouble. "This is certainly a convenient rule, and it seems to me the only safe one by which, in many cases, it can be determined who are defendants." Lucas v. Bank of Darien, 2 Stew. 324. But the only object of the prayer for process is to designate which of those persons named in the stating part of the bill are to be proceeded against for relief. In this case the infants on whose account the guardian ad litem has demurred and appealed are specifically and severally named and made parties defendant, and appropriate relief is prayed. On the record before us we may presume that process was in fact issued and duly served, and that the court, in pursuance of its rule, has...