Babbitt v. Doe

• Decision Date: 29 November 1853
• Citation: 4 Ind. 355
• Parties: Babbitt v. Doe on the demise of Brush and Others
• Court: Indiana Supreme Court

4 Ind. 355

Babbitt v. Doe on the demise of Brush and Others

Supreme Court of Indiana

November 29, 1853

ERROR to the Franklin Circuit Court.

The judgment is affirmed with costs.

G Holland, for the plaintiff.

J Ryman, for the defendant.

OPINION

Davison J.

Ejectment for a tract of land in Franklin county. The cause was submitted to the Court. Judgment was given for the plaintiff below.

Upon the trial it was shown that Edward Brush, on the 11th of August, 1826, died seized of the premises in dispute, leaving Ann Brush, his widow, and the following named children and heirs at law, viz., Elma Brush, Shadrach Brush, Rebecca Brush, Joseph Brush, and Mary Brush, who, with John L. Hoyt, the husband of the said Rebecca, are the plaintiff's lessors. At the death of their father the said heirs were all minors, the oldest of them not more than twelve years of age. Within a short period after the death of Edward Brush, his widow and children removed to the state of Connecticut, where they have ever since resided.

The plaintiff having proved that the defendant was in possession of said premises, rested.

The defendant claimed title under a deed, made by Andrew S. Babbitt, administrator of the decedent, pursuant to an order of the Franklin Circuit Court. The records of that Court show that at the March term, 1827, the administrator appeared and filed an inventory of the real estate of said deceased, and thereupon suggested the insufficiency of the assets then in his hands to pay the debts against the estate; whereupon the Court appointed one Reuben Edgerton, guardian ad litem for said minor heirs, and ordered its clerk to issue a summons requiring him to appear for them at the next term of the Court, and show cause, if any he could, why the land in the inventory described should not be sold, &c. The clerk was authorized to insert in the summons the respective names of said minor heirs, when known, &c. This summons was accordingly issued, and served upon the said Edgerton.

The records further show that at the September term, 1827, the administrator appeared; but Edgerton, the guardian, although called, did not appear. And thereupon, the Court ordered the administrator to sell the land, on a credit of nine months, upon giving notice, &c., and that he give bond, &c. At the March term, 1828, the administrator made report, stating, inter alia, that he had sold the land to one John Maple for 226 dollars, that being the highest bid, &c. The Court approved the sale, and ordered the administrator, upon the payment of the purchase-money, to convey the land to Maple. The defendant gave in evidence a deed from said administrator to Maple for the land, being the same now in dispute; and also a deed in fee for the premises to himself from the said Maple. It was then proved that the decedent's heirs, at the time of the proceedings in the Circuit Court relative to said sale, were minors and non-residents. There was also evidence tending to show that they had no notice of the suit. Nor does it appear that the person appointed guardian ad litem ever acted as such, or even accepted the appointment.

The record, given in evidence in the cause, shows the proceedings of a Court possessing general powers; but it contains no averment on the subject of notice to the defendants. Then the point of inquiry is, were they bound by the order directing the sale of the premises? It is conceded that the cause of action was properly before the Court; but contended that the infant heirs had no notice of the suit in which that order was made; and that, therefore, it was a nullity. Infants should be served with process, or notified in the same mode as if they had been adults. 8 Blackf. 301. Without notice or appearance, they are not within the jurisdiction of the Court. And we believe the principle to be correct, "that the judgments of all Courts are void, unless they have jurisdiction of the parties as well as the cause." Hollingsworth v. Barbour, 4 Peters 466. To bind a party by a judgment when he had no notice of the action, would be in conflict with the first principles of justice. 5 Johns. R. 38. The plaintiff contends that the validity of the order cannot be questioned in this suit: that it is erroneous, merely, and the only mode in which it could be avoided, is by a...