In re Kelber
| Decision Date | 06 November 1924 |
| Docket Number | 22635 |
| Citation | 200 N.W. 786,51 N.D. 698 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Richland County, before Wolfe, J.
Reversed.
Reversed and remanded with direction.
Purcell & Slattery, for appellant.
It is generally held that when an infant is made a party to an action, he must be served with process. 31 C. J. chap. 320 under Infants, 1150, note 36, citing U. S. Ala. Ark. Cal Fla. Ga. Ill. Ind. Ia. Ky. Md. Miss. Mo. Neb. N.Y. N. Car. Ohio, Okla. S. Car. S. Dak. Tenn. Tex.
Before the appointment of a guardian ad litem for any defendant, the general rule is that there should have been service of process upon the defendant as is necessary to bring him within the jurisdiction of the court. 31 C. J. chap. 278 under Infants, p. 1130, citing Ala. Ark. Cal. Fla. Ga. Ind. Ill. Ia. Kan. Ky. Minn. Miss. Mo. Ohio, Okla. S. Car. Tenn. Tex. Wis
The legal representative of an infant in making defense to an action was called in the common law, guardian ad litem and this term is preserved in modern practice. In every criminal prosecution action at law or in equity, or special proceeding in which an infant is defendant, it is the duty of the court to appoint for him a guardian ad litem; at least in the absence of a general guardian; and until this is done, he cannot make a legal defense nor can any steps in the action be taken against him. 14 R. C. L. chap. 52, under Infants, page 282, note 12, citing Ill. Me. Mass. Mo. Ohio, Va.
The fact that the law prescribes a special method of defense by an infant defendant, does not dispense with the regular service of process against him in beginning the action. Indeed the court has no jurisdiction to appoint a guardian ad litem unless the statutory requirements as to service have been complied with. An infant can neither acknowledge or waive the regular service of process upon him. 14 R. C. L. chap. 53, under Infants, p. 284, citing Ala. Fla. Ill. Ia. Kan. Ky. Mass. Mo. N.Y. N. Car.
A statute requiring process against an infant to be served on his father, mother or guardian, is not complied with by service on the parent in his capacity as defendant only; where the parent is also a party defendant, he must be specially served for the infant in order to bring the latter before the court. 14 R. C. L. chap. 53, under Infants, 284, note 8.
It is held in most of the cases that the lack of service on the infant is a fatal, because jurisdictional, defect, and cannot be cured by the appointment of a guardian ad litem, and is making actual defense for the infant; and this ruling seems consistent with the lack of power on the part of the guardian to bind the infant by his admissions or stipulations. 14 R. C. L. chap. 53, page 285, notes 11 and 12, citing Ill. Ky. Mo.
Service of summons upon an infant defendant in the mode authorized by the statute must precede the appointment of a guardian ad litem for him, and though such guardian be appointed, and he appears and represents the interests of the minor, the appointment and all subsequent proceedings in the action, including the final judgment are void, as against the infant not served with process or summons. Phelps v. Heaton (Minn.) 82 N.W. 990.
W. L. Divet, State's Attorney, and John Thorpe, Assistant Attorney General, for respondent.
The matter of the guardianship of minor children, on their father's petition to vacate an order of the county court depriving him of their custody, was in the circuit court, not to review the action of the county court, but for trial de novo, and the circuit court had all the power which the county court might have exercised. Re Skowran (S. D.) 172 N.W. 806.
A finding of fact by the trial court in a mandamus proceeding will not be set aside on appeal if supported by any credible testimony. State ex rel. Trimble v. Minneapolis, St. P. & S. Ste. M. R. Co. 28 N.D. 621.
Where either a law action or a special proceeding is tried by the court, the findings of the court have exactly the same weight as the verdict of a jury and must be given the same weight in this court. Jasper v. Hazen, 4 N.D. 1; Dowagiac Mfg. Co. v. Hellekson, 13 N.D. 257; Ruettel v. Ins. Co. 16 N.D. 546; James River Nat. Bank v. Weber, 19 N.D. 702; State Bank v. Maier, 34 N.D. 259; Novak v. Lovin, 33 N.D. 424.
In such case, this court will not substitute its judgment for the judgment of the trial court as to the facts, but will simply look into the testimony to ascertain whether there was any substantial evidence to sustain the findings. In other words, in such case, this court will treat the findings of fact of the lower court exactly as it would treat the verdict of a jury had the case been tried by a jury. This court will not review the evidence in this case with a view of determining its weight, but simply to ascertain whether or not there was sufficient legal evidence to support the verdict or findings. Taylor v. Jones, 3 N.D. 235; Clemens v. Royal Neighbors, 14 N.D. 116; Houghton Imp. Co. v. Vavrowski, 125 N.W. 1024; Hall v. N. P. R. Co. 16 N.D. 60; Casey v. First Nat. Bank, 126 N.W. 1011; Olson v. Day, 23 S.D. 150; Grand v. Powers Dry Goods Co. 23 S.D. 195; Jackson v. Grand Forks (N.D.) 140 N.W. 718; Reed v. Ehr, 36 N.D. 552.
It is finally urged that the statute of 1899 is unconstitutional for the further reason that it invests the "court with powers to try the right of the liberty of any child under the age of 15 years without the service of a summons, a warrant, or process of any kind upon such child." The statute provided a hearing by the court after notice shall have been served upon the parent or person having the actual custody or control of the child. It is not essential that the law should be further extended so as to provide for notice of the infant in a proceeding to have the custody thereof committed to the guardianship and control of the board. See Board v. Shutter, 31 L.R.A. 740; Gibson's Appeal, 28 N.E. 296; Kurtz v. Railroad Co. 51 N.W. 221; Reynolds v. Howe, 51 Conn. 472. In Van Walters v. Board, 32 N.E. 568, the validity of the Act of 1899 was upheld. This court in that case said: "The statute violates no constitutional principle, inasmuch as it guards the interest and rights of parents by requiring that their children should not be taken from them without a hearing, upon due notice, in the courts of this state." Wilkinson v. Board (Ind.) 62 N.W. 481.
This is an appeal from an order of the District Court of Richland County made on the third day of March, 1924, refusing to vacate and set aside a former order of the court made on December 20, 1923, wherein it was adjudged and decreed that the three minor children of the defendants, Margaret, Helen and Violet are neglected children, within the meaning of the laws of this state, and appointing Frank D. Hall, Superintendent of the North Dakota Children's Home Society, as guardian of said children and directing and authorizing him to take them from the custody of their parents and place them in a family home or in such other suitable place as may be provided. Hall was also authorized to consent to the legal adoption of the children within the state. The order, in effect, takes the children from their parents permanently, appoints a guardian for them, who is authorized to consent to their permanent adoption into any suitable family within the state. The appellants challenge the legality of this order and contend, upon the merits, that the court exceeded its authority in taking the children from them and in authorizing a guardian, appointed by the court without the parent's consent, to arrange for their adoption.
The defendants, Henry Kelber and Bertha Kelber, were married in Iowa in 1911, and, during substantially all of the intervening time, have lived on a rented farm of 160 acres in Richland County. The record shows that Kelber had stock on the farm, consisting of horses, cows, hogs, chickens, turkeys and geese and that he had adequate farm machinery for his needs. The oldest child, Margaret, was, when these proceedings were commenced, 7 years old; the second child, Helen, was 4 years old and the youngest, Violet, was 10 months old. The house in which the family lived was apparently a small farm house, partitioned into two rooms, with two beds in one of the rooms. The record shows that the wife and the children occupied one bed and the husband a lounge or couch.
One Adelaide Price, school nurse of Richland County, some time in the fall of 1923, visited the home of the Kelbers. There had been some difficulty between the Kelbers, husband and wife, owing to her lack of tidiness. It seems that Mr. Kelber was not satisfied with the manner in which she kept house and that this occasioned domestic discord which had culminated in a resolution on the part of Mrs. Kelber to leave the home and procure a divorce. It is this domestic situation which, at least to some extent, explains the request made by the Father to the visiting nurse to advise him where the children could be cared for. The father maintained that he always understood that this arrangement would be only temporary and that the children would be restored to him. It appears that he offered and desired to pay whatever was reasonably necessary to care for the children until other arrangements could be made by him.
It is upon the testimony of Adelaide Price that the conclusion of the trial court largely rests. He also saw the family. It will be necessary to consider...
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