Eubanks v. McLeod

• Decision Date: 20 October 1913
• Docket Number: 15,970
• Citation: 105 Miss. 826,63 So. 226
• Court: Mississippi Supreme Court
• Parties: MATILDA EUBANKS v. SARAH MCLEOD

63 So. 226

105 Miss. 826

MATILDA EUBANKS v. SARAH MCLEOD

No. 15,970

Supreme Court of Mississippi

October 20, 1913

APPEAL from the circuit court of Greene county, HON. J. L. BUCKLEY Judge.

Suit by Matilda Eubanks against Sarah McLeod and others. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Rich &amp Hamilton, for appellant.

The main point is on the validness vel non of the chancery proceedings on account of the service of the minors. This case comes squarely within the case of McIvoy v Alsop, 45 Miss. 365, 373. Where the court construing the statute as to service on minors held that, where, from the bill, it appeared who was the mother of the minors, and there was no father (the bill in the McLeod case showing also the father's decease) and where mothers and infants were included in the summons and the return there as here, being that there was execution by service on all the persons therein named, by giving a copy to each, it was held that it was not necessary to give two notices to the mother.

The court per Simrall, Jr., holds "it would have been an idle ceremony to have given the mother two copies. The purpose of the statute has been met" this case had the point presented squarely, the remainder of the bench at that time being Chief Justice PEYTON and Associate Justice TARBELL.

In Smith v. Pattison, 45 Miss. 619, 625, it was held that though it was necessary that the records show who the mother was that such showing in the bill was sufficient.

The case of Gibson v. Currier, 83 Miss. 234, discusses the same question as the McIvoy case but it is shown on page 253 of the opinion that this discussion was obiter. The facts were that nowhere was it shown that there was no guardian, no mother or father and the proceeding was for an amendment for both the process and the return. The discussion of the McIvoy case follows by way of criticism. The case of Erwin v Carson, 54 Miss. 284, is stated as overruling the McIvoy case whereas that case simply held that the relationship, or lack of mother, father or guardian must be shown some where in the record and it would seem that Mr. Justice CAMPBELL in rendering the opinion in the Erwin case had he thought it impinged on the McIvoy case he would have said so, and the mere statement of the requirement of service on father, mother, or guardian is necessary was but a repetition of the statute the construction of which the court had before it directly in the McIvoy case. As showing no conflict was involved the earliest case of all, Ingersoll v. Ingersoll, 42 Miss. 162, is followed in Erwin v. Carson without indication that the intermediate McIvoy case is affected.

This Gibson case has a vigorous dissent by Mr. Justice CALHOUN. The Gibson case cites Hodges v. Wise, 16 Ala. 509, where no service was had at all on the minor and the parents served were defendants and served simply as such.

The McIvoy case is supported by two or several well-reasoned decisions where the same point is squarely presented and under a like statute in Lawrence v. Connor, 14 S.W. 77. Also Cheatham v. Whitman, 6 S.W. 595.

A similar point is considered in DeKalb v. German, etc., 65 Pa. (Wash.) 559, where a similar result is reached. This last case is also reported in 87 American State Reports, 757.

We earnestly insist therefore that the Gibson case did not overrule the McIvoy case the point not being necessary to the decision and that the McIvoy case is supported by reason and authority and is decisive of this appeal.

Ford, White & Ford and E. W. Breland, for appellee.

It is practically conceded by counsel for appellant that this decree was void and the judgment of the circuit court was correct, unless the court can be induced to overrule the recent case of Gibson v. Currier, 83 Miss. 234.

We respectfully insist that not only does Gibson v. Currier announce the correct principal as to service of process upon minors, but that decision on this point was not obiter as appellant claims. Until that decision is completely overturned, the jurisdiction cannot be conferred upon minors by a simple return of process showing that the minor had been served with the writ and also that his father or mother had likewise been served.

But the record in this case does not even bring the case within the rule announced in McIlvoy v. Alsop, 43 Miss. 365. In that case it did appear in the record that the minor who was made defendant had no guardian and moreover it appeared that each of the minors were served with process. In order to confer jurisdiction we submit that it is as essential that the record in the cause, not the return of the officer, should show that the minor had no legal guardian upon whom the process could be served as it is that he has no mother or father living, even though the record does show that his mother be living. Where is anything in this record to show that these Dickinson children had no legal guardian? Perhaps the trifling sum that this land brought might raise the presumption that the appointment of a guardian would be unnecessary, but we submit that even though the court should abandon the rule announced in Gibson against Currier, which simply requires that the law be followed in such matters, that the appellant in this case is no better off, for the simple reason that nowhere in this record does it appear that these children had no legal guardian upon whom process could have been served.

An inspection of the return made by the sheriff on this summons shows not only a failure to comply with the provisions of this statute as to serving process upon minors, but a total failure to comply with the statute as to service of adults. The return simply states that he "executed the within process by handing a true copy of same to the within named defendants. This, the 24th day of July, 1896." If these defendants had all been sui juris on that date, which they were not, as it plainly appears by the record, it is insisted that this return was wholly insufficient to warrant a pro confesso or judgment by default. The return does not say that he handed true copies of the same to the defendants so as to raise the presumption that he handed a copy to each of them, nor does it recite anywhere that he handed a true copy to each of the defendants. The only inference to be drawn from this return is that he handed a copy of the process to one of the defendants. If he had handed one to each of the defendants it would have been easy enough to have so stated it, or if he used more than one copy of the writ in making the service of the process, he certainly would not have used the word "copy." So this was a case in which the only way that these minor defendants become connected with the litigation was by an appearance by an attorney at law and the whole proceeding after such appearance was conducted just as though they had been adults.

We submit that such a return was wholly insufficient to confer jurisdiction upon the court so far as it affected the interest of these minors. That neither the minors themselves, the attorney who appeared for them nor the court, had any power to disregard the plain mandate of the law and undertake to deal with their property as if they were adults.

It will also be observed that after these minors were brought into the court on the voluntary appearance of an attorney, that this attorney, acting in good faith no doubt, undertook to bind them by agreement....