Leach v. Maxwell

• Decision Date: 11 October 1926
• Docket Number: (No. 178.)
• Parties: LEACH et al. v. MAXWELL.
• Court: Arkansas Supreme Court

286 S.W. 1029

LEACH et al. v. MAXWELL.

(No. 178.)

Supreme Court of Arkansas.

October 11, 1926.

Appeal from Carroll Chancery Court; Sam Williams, Chancellor.

Suit by Noah Maxwell against Mattie Leach and others to foreclose a mortgage. Decree in favor of plaintiff, and defendants appeal. Affirmed.

F. O. Butt, of Eureka Springs, for appellants.

C. A. Fuller, of Eureka Springs, for appellee.

SMITH, J.

On May 10, 1912, H. F. Leach borrowed from Noah Maxwell $700, due three years thereafter, at 10 per cent. interest, and mortgaged his farm, consisting of 120 acres of land, to secure the payment of the note evidencing this loan. The wife of Leach joined in the execution of the note and mortgage. In October, 1912, Leach paid $300 on the debt, and a 40-acre tract of the land was released, and in 1917 a sale of one of the two remaining 40-acre tracts was made at the price of $600. Leach died, and this suit was brought against his widow and two minor children to foreclose the mortgage, and a decree of foreclosure was rendered, from which is this appeal.

One of the minor children was a daughter, named Hazel, who was 16 years old; the other was a son, named Norvin, who was 10 years old at the time of the institution of the suit, and it is insisted, for the reversal of the decree of foreclosure: (a) That there was no sufficient service on the minor defendants; (b) that no sufficient defense was interposed for them; and (c) that the testimony shows the note had been paid.

The summons required Mattie Leach, the widow, and Hazel Leach and Norvin Leach to appear and answer, and the return of the sheriff thereon showed that the summons had been served "by delivering a copy and stating the substance thereof to the within named Mattie Leach, Hazel Leach, and Norvin Leach," and it is insisted that this service on Norvin Leach was insufficient, because the return of the sheriff did not show that he left a copy of the summons with Mrs. Leach for him.

By section 1153, C. & M. Digest, it is provided that:

"Where the defendant is an infant under the age of fourteen years, the service must be upon him, and upon his father or guardian, or, if neither of these can be found, then upon his mother, or upon any other person having care or control of the infant, or with whom he lives. Where the infant is over fourteen years of age, service on him shall be sufficient."

The insistence of appellants for the reversal of the decree appealed from is that a literal compliance with the statute is required to obtain service on a minor, and that a substantial compliance does not suffice, and that the service on Norvin Leach was therefore not sufficient, for the reason that the return of the summons does not...