Bolling v. Campbell
| Decision Date | 12 September 1912 |
| Citation | 128 P. 1091,36 Okla. 671,1912 OK 581 |
| Parties | BOLLING ET AL. v. CAMPBELL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
It is the duty of courts to guard with jealous care the rights of minors in actions brought against them. No presumption against an infant can be permitted, but, on the contrary every presumption is indulged in his favor, and a guardian ad litem must see to it that every question available in the defense of his ward is urged and acted upon by the court; and in case of the failure of the guardian ad litem to properly discharge his duty in that or any other respect it becomes the imperative duty of the court to protect the infant's rights.
Where the defendant is a minor under the age of 14 years, service of summons must be upon him and upon his guardian or father or, if neither of these can be found, then upon his mother or the person having the care and control of the infant, or with whom he lives; if neither of these can be found, or if the minor be more than 14 years of age, service on him alone will be sufficient.
An infant cannot waive the issuance and service of summons; nor can any person, not even his guardian, do so for him.
A court cannot appoint a guardian ad litem for an infant until after service of summons has been made as required by statute.
Additional Syllabus by Editorial Staff.
Under Comp. Laws 1909, §§ 5598, 5611, relating to service of process, an officer's return of service on infant defendants failing to show whether they were over or under 14 years of age, and reciting merely that summons was left at their usual place of abode, by leaving copies in the hand of C. D., who was a member of their family, did not show service.
Commissioners' Opinion, Division No. 1. Error from District Court, Jefferson County; Frank M. Bailey, Judge.
Action by H. W. Campbell against W. C. Bolling, individually and as guardian of Theodore and Octavia Bolling and others, to recover money alleged to be due for certain improvements on real estate belonging to the minors. Judgment for plaintiff and defendants bring error. Reversed. attached summons at the usual place of residence of the within-named Theodore Bolling and Octavia Bolling, for each of them by leaving said copies in the hand of Clermont Dixon in the presence of the said Theodore Bolling, and the said Clermont Dixon being their aunt, and a person over the age of fifteen years, and a member of their family; whereupon the said Clermont Dixon delivered to Theodore Bolling, in my presence, one of such copies, so certified. Witness my hand this 8th day of February, 1909. John A. Harrison, Sheriff, by W. S. O'Neil, Undersheriff."
On September 7, 1909, the court appointed one Carl Monk guardian ad litem for said minors, who on the same day filed a general demurrer to plaintiff's petition, which was overruled by the court; whereupon an answer was filed, trial was had, a verdict returned in favor of plaintiff in the sum of $400, judgment entered thereon, and from said judgment the minors appeal.
James S. Arnote, of McAlester, for plaintiffs in error.
Charles E. Davis, of Ryan, for defendant in error.
ROBERTSON, C. (after stating the facts as above).
Without doubt the subject of this action is the right of the plaintiff to recover of the defendants a money judgment for the value of the improvements made by him on their allotments. The title to the land is not involved; nor is the right of possession of the land in question. The suit involves only the right to recover a money judgment. No suit could be maintained against the minors until they had been brought within the jurisdiction of the district court by proper process, in strict conformity to the provisions of the statute.
It is the duty of the court to guard with jealous care the rights of minors in actions brought against them. No presumption against an infant can be permitted, but, on the contrary every presumption is indulged in his favor, and the guardian ad litem must see to it that every question available in the defense of his ward is urged and acted upon by the court; and in case of the failure of the guardian ad litem to properly discharge his duty in that or any other respect it then becomes the imperative duty of the court to protect the infant's rights. A motion to quash the summons and a plea in abatement was duly filed in the court below, but for some reason or other they do not appear to have been passed upon by the court. The record shows that the only service of summons had upon the infant defendants was in Pittsburg county. In this case the real parties in interest all lived in Pittsburg county. None of them lived in Jefferson county, and the provisions of our statute require that the parties in such a case must be sued in the county where they reside. Had one of them lived in Jefferson county, it might be that the service of summons as to the others could be made in some other county. It has been repeatedly held by the Supreme Court of Kansas, from which state our Civil Code came, that where a party living in the county where the suit is brought is not a real party in interest, but is made a party to the suit, and the summons then runs to other counties, and is served upon the other defendants, that the court obtains no jurisdiction of the defendants served in other counties than that in which the suit is pending. In Wells v. Patton, 50 Kan. 732, 33 P. 15, it is said: "Before a summons can be rightfully issued from one county to another, the person served with the summons in the county in which the action is brought must have a real and substantial interest in the subject of the action adverse to the plaintiff, and against whom some substantial relief may be obtained; and the action must be rightfully brought in the county in which it is brought, and as against the person served with summons in such county." In Milling Co. v. De Witt, 65 Kan. 665, 70 P. 647, it is said: "The commencement of an action against an adventitious defendant in one county, and the service of process on him there, will not give the court jurisdiction of the real defendant, who is...
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