Burgett v. Williford

• Decision Date: 07 May 1892
• Parties: BURGETT v. WILLIFORD
• Court: Arkansas Supreme Court

19 S.W. 750

56 Ark. 187

BURGETT v. WILLIFORD

Supreme Court of Arkansas

May 7, 1892

APPEAL from Critenden Circuit Court, JAMES E. RIDDICK, Judge.

Judgment affirmed.

W. G Weatherford for appellants.

The decree in the Ferguson & Hampson case is void. The court never acquired jurisdiction over the minors. They were never served with legal notice, nor does the decree recite that they were, but "as appears and is shown by the return of the sheriff, etc." A summons must be issued to the sheriff commanding him to summon the defendants therein named. Mansf. Dig. secs. 4967, 4968. The defense must be by regular guardian if there is one, or by one appointed. No judgment can be rendered against an infant until after defense by guardian. lb. 4957. The appointment of a guardian cannot be made until after service of summons, lb. sec. 4958; 39 Ark. 61. There is no legal way to bring an infant into court except by naming him in the writ. See 40 Ark. 42, 56; 42 id. 222; II Humph. 191; 49 Ark. 397; 19 Wall. 570; 36 Ark 211; 31 id. 493. Infants must be summoned and served, or the court has no jurisdiction and the appointment of guardian ad litem is void. 63 Cal. 554; 66 id. 53; 68 Tex. 215; 18 Wall 350. See also Galpin v. Page, 18 Wallace; Pennoyer v. Neff, 95 U. S.; Ins. Co. v. Bangs, 103 U.S.

U. M. & G. B. Rose and E. F. Adams for appellees.

1. The appellants have not shown title to any of the tracts, in accordance with the rule in 38 Ark. 181, and hence must fail.

2. The Ferguson & Hampson decree includes the greater part of the lands. The summons is in proper form; but if not, the decree cannot be collaterally impeached. It is the judgment of a domestic tribunal of general jurisdiction, and can only be attacked by a direct proceeding. Every question involved in reference to the validity of this decree is settled by 49 Ark. 392. See also 50 Ark. 338; 13 S.W. 134. But the summons was directed to Peter L. Burgett and the minors and was served upon them all. Courts are not disposed to encourage frivolous objections to process. See 4 Ark. 429; ib. 520; 6 id. 476; 13 id. 415; 14 id. 59; 25 id. 97; 32 id. 278; 32 id. 407; 34 id 682; 36 id. 293; 37 id. 450; 44 id. 404; 45 id. 36; 48 id. 33. And if a writ is amendable, it will be considered as amended when collaterally questioned, 12 Ark. 421; 19 id. 306; 47 id. 374. The errors in the decree are mere clerical ones; in the complaint the lands are properly described. In such cases mere clerical errors will be disregarded. 38 Ark. 195; 40 id. 110; 1 Thomps. Trials, sec. 1094.

3. Bettie Burgett is clearly barred by limitation. All questions of limitation are settled by the law of the forum. Story, Confl. Laws, sec. 577.

OPINION

HUGHES, J.

This is a suit in ejectment brought by the appellants to recover of the defendants about three thousand acres of land in Crittenden county, which are described in the complaint. The cause was tried by the court without a jury. The court found the facts, declared the law and gave judgment for the appellants, from which the defendants appealed.

A decree of the Crittenden circuit court in chancery rendered in favor of Daniel L. Ferguson and H. L. Hampson, the vendors of the appellee, Williford's, intestate, against Peter N. Burgett as administrator and guardian of Bettie, Ida W. and Peter L. Burgett, minors, and against the said minors as the infant heirs at law of the said Peter N. and Elizabeth G. Burgett, both deceased, as also the statute of limitation of two years and of seven years, were relied upon by the appellees to defeat the claim of the appellants.

The Ferguson and Hampson decree was rendered upon a complaint in equity, to which said Peter L., Bettie and Ida. W. Burgett were made parties by name as the infant heirs at law of the said Peter N. and Elizabeth G. Burgett. A guardian was appointed for them, and appeared and answered the complaint. The decree in the cause was that the claims of the defendants to the lands described in it were clouds upon the title of the plaintiffs, Ferguson & Hampson, and that they be removed, and that the title of the said Ferguson & Hampson be quieted. The decree has not been reversed or set aside. It is stated by both the counsel for appellants and appellees that this decree covers nearly all the lands embraced in this controversy, and that if the said decree is valid, it settles this controversy in favor of the appellees as to the lands covered by it. But the appellants attack this decree on the ground that it was rendered without jurisdiction of the minor defendants thereto. To support this contention they say that no summons issued for said infant defendants; that they were not served with process; that the decree is therefore void for the want of notice to them.

As stated above they were named as defendants in the complaint. The summons in the record which issued in that cause with the return upon it is as follows:

"SUMMONS IN ACTION BY EQUITABLE PROCEEDINGS.

The State of Arkansas to the Sheriff of Crittenden County:

You are commanded to summon Peter L. Burgett, administrator of Peter N. Burgett and guardian of Bettie, Ida and Peter Burgett, minors, to answer in twenty days after the service of this summons upon them, a complaint in equity filed against them, in the Crittenden circuit court, by Ferguson & Hampson, and warn them that upon their failure to answer, the complaint will be taken for confessed; and you will make a return of this summons on the first day of next October term of said court.

Witness my hand and the seal of said court, this 29th day of September, 1880.

A. H. FERGUSON, Clerk.

[SEAL.]

RETURN.

State of Arkansas. County of Crittenden.

I have this 29th day of September, A. D. 1880, duly served the within by giving a copy of the same to the within named Peter L. Burgett, as administrator and guardian of the within named Bettie, Ida and Peter Burgett, minors, and giving to each of the said minors a copy of the same, as herein commanded.

W. F. BEATTIE, Sheriff,

By W. F. MADOX, D. S.

Fees, $ 3.25.

Returned and filed this 29th day of September, A. D. 1880.

A. H. FERGUSON, Clerk."

The recitals of the decree are as follows: "And now on this day this cause came on for hearing upon the bill and exhibits thereto and the answer of S. P. Swepston, guardian ad litem of the infant defendants, Bettie, Ida and Peter Burgett, herein appointed, and it appearing to the court that due and legal process of the pendency of this suit and of the filing of the bill herein, had been had upon defendants, Peter L. Burgett, as administrator of the estate of Peter N. Burgett, deceased, and as guardian of said infant defendants, Bettie, Ida and Peter Burgett, children and heirs at law of the said Peter N. Burgett and Elizabeth G. Burgett, both now deceased, in the way and manner by law required; as appears and as shown by the return of the sheriff of the county in the summons issued herein and filed."

It is insisted that there could be no valid service upon the infant defendants unless their names had been included in the summons as defendants. The omission to name them in the summons as defendants was doubtless a clerical error. The summons was amendable. Galbreath v. Mitchell, 32 Ark. 278; Richardson v. Hickman, 32 Ark. 406; Martin v. Godwin, 34 Ark. 682. "Where suit is defective in a matter that is amendable, it will be considered as amended when collaterally questioned." Whiting v. Beebe, 12 Ark. 421.

That the infant defendants were notified of the pendency of the suit against them by service of a copy of the summons that was issued in that cause (a copy of which with the return thereon appears in the record) upon each of them, is apparent. See McNutt v. State, 48 Ark. 30 2 S.W. 254. The Ferguson & Hampson...