Price v. Hartzell
| Decision Date | 30 September 1918 |
| Docket Number | 141 |
| Parties | PRICE v. HARTZELL |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Chancery Court; Jno. M. Elliott, Chancellor affirmed.
Decree affirmed.
Geo. C Lewis, for appellant.
1. Appellant was only ten years old when the summons was delivered to her and no copy was served on her father guardian, mother or other person in control of her. The court acquired no jurisdiction although the record recites that each of the defendants was duly served with process. 22 Cyc p. 680 § 7; 83 Ark. 201; 124 Id. 331; 96 P. 1005; 18 L. R. A. (N. S.) 405. See also 22 Cyc., note 50; 1 Duv. (Ky.), 251; 115 Ark. 220, 64 Id. 500; 22 Id. 342; 35 Id. 502; Rose's Dig., 847, 51; 30 Ark. 437; 42 Id. 18; 34 Id. 682; 126 Id. 120; 39 Id. 237.
2. Lack of service on an infant in the statutory manner, is a jurisdictionally fatal defect that cannot be cured by the appointment and defense of a guardian ad litem. 14 R. C. L. 285; 22 Cyc. 678; Black on Judgm., § 194.
3. The guardian made only a perfunctory defense. 44 Ark. 244; 107 Id. 6.
4. The guardian should have asked for a marshalling of assets. 72 Ark. 412. It was the duty of the chancellor to see that proper defense was made. 60 Ark. 532; 107 Id. 7.
John L. Ingram, for appellee.
1. The record shows proper service on the minor in the manner prescribed by law. 72 Ark. 256; 63 Id. 513; Kirby's Digest, §§ 4424-5, 6049. The record does not show that appellant was under 14 years of age. Due service may have been shown by "other evidence." 63 Ark. 513.
2. The judgment is presumed to be right unless affirmatively shown to be erroneous. 124 Ark. 388.
3. A proper defense was made by the guardian. Kirby's Digest §§ 6023, 6107. He filed an answer and evidence was heard. Ib. § 6107.
4. It does not appear that marshaling of assets was necessary or would have aided appellant.
Appellee instituted suit against appellant, a minor, and others, in the Arkansas Chancery Court to recover a judgment against W. M. Price and to foreclose two mortgages on certain real estate in Arkansas County, executed by W. M. Price and wife to secure an indebtedness of $ 3,000 and interest. The complaint alleged the execution of the note and mortgages, the breach of the conditions thereof, and that appellant claimed an interest in a part of the lands as alienee of W. M. Price, but that the conveyance was in fact subsequent to the mortgage and made subject to it. Summons was issued against all the defendants, and return made thereon by the sheriff showing that he delivered a copy of the writ and stated the substance thereof to certain of them, including appellant. A guardian ad litem was appointed for appellant, who made denial of the indebtedness and execution of the note and mortgages. The answer also included the following clause, "And denies each and every allegation of the complaint not specifically admitted, qualified or denied." Thereafter a judgment was rendered against W. M. Price for $ 3,800.54, and a foreclosure of the mortgage lien and a sale of the lands was decreed to pay the amount. The decree contained a recital that appellant was duly and legally served with process of the court by summons for the time and in the manner required by law; also that the cause was heard upon the complaint, the answer of the guardian ad litem, original note and mortgages, and other evidence. One of the findings in the decree was to the effect that appellant acquired an interest in a certain parcel of the land described in the mortgage by conveyance from W. M. Price subsequent to and subject to the mortgage.
An appeal from the decree has been prosecuted to this court by Ernest R. Price, appellant's father and natural guardian.
It is insisted that appellant was only ten years of age when summons was delivered to her, and that the court acquired no jurisdiction over her because a copy of the summons was not served on her father, guardian, mother or person having control of her or with whom she lived. It is true that a copy of a summons must be served, not only upon a minor if under 14 years of age, but also upon the father or guardian; and, if neither can be found, upon the mother, or, if she cannot be found, then the person having control of or with whom the minor at the time lived. But it is also provided in the same section that "where the infant is over 14 years of age service on him shall be sufficient." Kirby's Digest, sec. 6049. This case came to us on appeal, and must be decided on the record made below. The record is silent as to the exact age of appellant. There is a recital in the decree to the effect that appellant was served in the manner provided by law. There is also a recital to the effect that the cause was heard upon "other evidence." This evidence has not been brought into the record. It must be presumed either that appellant was over 14 years of age or that the minor was under 14 years of age and that a copy of the summons was served upon her father or guardian, her mother, if they could not be found, or, in case she could not be found, upon the person who had control of her, or with whom she lived at the time, else the court could not have found that the appellant had been served in the manner provided by law. This recital in the decree must control on appeal where there is nothing in the record contradictory thereof. Section 4425, Kirby's Digest; White v. Smith, 63 Ark. 513, 39 S.W. 555.
It is also urged as a cause for reversal that the guardian did not deny all the material allegations of the complaint prejudicial to appellant. The only allegation contained in the complaint prejudicial to appellant not specifically denied is the one alleging that the conveyance by which she acquired an...
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