Martin v. Porter
| Decision Date | 30 April 1871 |
| Citation | 51 Tenn. 407 |
| Parties | James Martin v. J. J. Porter et als. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM CARROLL.
Writ of Error to the Chancery Court at Huntingdon, dismissing the bill, August Term, 1870. JOHN SOMERS, Ch.
Josiah R. Hubbard for complainant cited as to guardian ad litem, Rucker v. Moore, 1 Heis., 726;Daniel v. Hannegan, 5 J. J. Marsh., 49;Knickerbocker v. DeFreest, 2 Paige, 304. As to order of publication, Code 3375, 4354, 4355, 4359. Proof does not support decree, Davidson v. Bowden, 5 Sneed, 129. Sale void, not being advertised thirty days, Code 2145. Report of sale void for uncertainty.
HAWKINS & HAWKINS and ALVIN HAWKINS for Defendants.
The bill is filed in this case by James Martin, to set aside a sale of the land mentioned in the pleadings, made by order of the County Court of Carroll county.
The sale was decree in said Court in order to partition, on the ground that it was manifestly to the interest of the parties, and complainant became the purchaser of one of the tracts of land so ordered to be sold.
He gave his notes for payment of the purchase money, due in one and two years from the date of the sale. Both of said notes had matured before the filing of this bill, and judgment, on motion, had been taken in favor of the commissioner who sold the land, against complainant and his sureties for the amount due on the same.
The bill claims that the sale ordered by the County Court of Carroll county was void, and alleges the following objections to the proceedings, as rendering them invalid.
1st. That several of the parties defendant, were minors, had no regular guardian, and were not served with process or copy of the bill. If the fact was as alleged, the parties being residents of the State, as a matter of course the decree would be void as to the parties not served, and the purchaser would get no title, as against them, and would be entitled to have the purchase made by him declared void.
But on looking into the record we find that these parties were served with process, October 5th, 1866, about one month before the decree of County Court was made ordering the sale. This appears by the return of the deputy sheriff of Carroll county. There is nothing in the record to contradict this return, even if complainant was in condition to dispute it, and we must take it to be true.
It is not alleged that the petition for the sale of the land was not sworn to. There is nothing in this objection. No law of Tennessee requires such a petition to be sworn to, nor any rule of Chancery practice. It was but an ordinary bill or petition for partition, asking no extraordinary process, but only a sale of the lands mentioned in the petition, as being manifestly to the interest of the parties that said sale should be made.
It is insisted the petition was never filed in the County Court. The answers expressly deny this allegation, and the record shows that the petition was filed in office of the County Court Clerk, and process regularly issued to the sheriff, commanding the parties to appear and answer it.
It is urged that no prosecution bond was taken by the Clerk. It would have been more regular if he had done so, and parties defendant in the case might have objected for want of such bond, but complainant in this case had not the slightest interest in that question, nor can his title under the sale be in any way affected by the want of a prosecution bond.
It is alleged that the order appointing the guardian ad litem is void, and communicated no authority to the guardian to answer, because there was no affidavit that the parties were minors and had no regular guardian, and the case of Rucker v. Moore, 1 Heis., 726, is cited for this position. The case cited was a proceeding under a different section of the Code, to-wit: sec. 2247, authorizing an administrator to file a petition for sale of slaves when necessary to payment of debts, the positive requirement of the statute being that “in all such cases he shall file his bill or petition on oath, to obtain a decree for the sale of such slaves, and the suit so commenced shall be conducted as other suits in Chancery.” No such requirement is found in the statute on the subject of partition, as that the bill or petition shall be sworn to, nor has it ever been required in Tennessee, that in ordinary cases a bill shall be sworn to in order to the appointment of guardians ad litem. The fact that a minor is sued, and has no regular guardian, appearing on the face of the bill, is always sufficient ground on which the Court shall appoint some one to defend the suit for him: See 1 Daniel's Ch. Pr., 150.
No inconvenience can arise to any one by such practice, as the minor must be in court by service of process or publication, before the appointment can properly be made. When this is done, it becomes the duty of the Court to make the appointment. If it should so happen that the person supposed to be a minor is of full age when brought into court, as a matter of course he will make his own defense, and no guardian will be appointed for him.
The order appointing Towns guardian ad litem in this case is made by the Court, and recites, that it appearing to the satisfaction of the Court that defendants, naming them, are minors, and have no regular guardian, and that they have been duly served with process, etc., “it is, therefore, ordered that Henry C. Towns be and is hereby appointed guardian ad litem for the said minors.”
The Court having jurisdiction of the person of the parties, and the decree reciting the fact, that it appeared to the satisfaction of the Court that said parties are minors, we would presume that satisfactory evidence was presented of the fact, even if proof was necessary in case of appointment of guardian ad litem by the Court. It is true that the Clerk and Master is authorized to appoint guardians ad litem at his office, “upon its being made to appear by affidavit that infants sued have no regular guardian:” Code 4420, sub-sec. 4; but this regulation applies only to the practice before the Master. We know of no provision of the Code making such requirement for the appointment when made by the Court.
We may add, that even if there was an irregularity in the appointment of a guardian ad litem,as that he was not appointed upon an affidavit showing that there was no regular guardian, we should be slow to hold, the other proceedings being regular, that a purchaser could set aside the sale, or have his purchase rescinded for such irregularity, while the parties really interested, the minors, did not complain, and no injustice had been done them.
It is said that the answer bears date November 5th, 1865, twelve months before the time of appointment. The date of affidavit is as stated, but at the commencement of the answer it is entitled November Term, 1866, and we can see that the date affixed to the affidavit is a clerical error.
It is insisted that the answer of the guardian ad litem was sworn to before a deputy clerk, and that he has no authority to perform this act. There is nothing in this. The power to appoint a deputy necessarily involves the idea that he shall act in the place of, and for the regular Clerk, and exercise the same powers; the acts of the deputy being the acts of the principal Clerk, by his lawfully appointed agent. Section 4050, sub-sec. 4 of the Code, confers the power on a deputy to transact all the business of the principal Clerk.
These are all the allegation of the original bill, on which complainant insists, for setting aside the sale, and being released from his purchase.
An amended bill was filed in this case, the only allegations of which, necessary to be noticed,...
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Thompson v. Ward
...the same powers; the acts of the deputy being the acts of the principal Clerk, by his lawfully appointed agent." Martin v. Porter, 51 Tenn. 407, 413 (Tenn. 1871); see also Tenn. Op. Atty. Gen. No. 85-243, at *2 (opining that deputy clerks may perform marriage ceremonies because deputy clerk......
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