Rucker v. Moore
| Decision Date | 30 September 1870 |
| Citation | 48 Tenn. 726 |
| Parties | Mahala Rucker et als. v. R. P. Moore et al. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM GRAINGER.
Appeal from the decree of S. J. W. LUCKY, Ch., in Chancery at Rutledge.
W. R. EVANS, for Complainant.
James T. Shields, for respondent, insisted upon the fact of Mahala Rucker, the purchaser, having been the guardian ad litem, in the original cause. That the County Court was not an inferior court; and cited Meigs' Dig., p. 341; 6 Hum., 133;7 Hum., 168;11 Hum., 447;Hopper v. Fisher, 2 Head, 253;Gilchrist v. Cannon, 1 Cold., 587;Tipton v. Powell, 2 Cold., 19.
The decree of the Chancellor declaring void the proceeding of the County Court, and perpetually enjoining the execution from said court, is a proper one.
In the latter part of the year 1861, Coalby Dalton and J. H. Dail, administrators of the estate of John Rucker, deceased, and Cornelia Dail, wife of said J. H., filed their bill in the County Court of Grainger County, against Mahala Rucker, the widow, and Perry Rucker, Barnett Farmer and wife, Mary, formerly Rucker; Nelson Rucker, Martha Rucker, Frank Rucker, James Rucker, Ruth Rucker, and Robert Rucker, the last five minors, without regular guardian, and also Isaac Payne and wife Mahala, residents of Kentucky; James Hodges and wife Emily, and John Rucker, residents of Texas.
The defendants, and complainant, Cornelia Dail, are the widow and children and heirs at law of Jno. Rucker, deceased.
The bill seeks to sell ten slaves belonging to said estate, for partition, upon the ground that they can not be divided, and “that a sale for division is indispensably necessary;” it charges that the minors have no regular guardian, but that application will be made at the next ensuing term, for the appointment of one; it prays that publication be made, and if no regular guardian be appointed, that guardians ad litem be appointed for the minors, &c. The bill is not sworn to. There is nothing in the record showing the appointment of regular guardians, or guardians ad litem for the minors. In January, 1862, a paper purporting to be the answer of the minors named above, is filed, and commences: “These respondents, answering by their guardian, say,” &c,. and this is not subscribed to by any one. The affidavit thereto, in the usual form, is sworn to by Mahala Rucker.
At the February Term, 1862, this order appears: “In this case, the death of Perry H. Rucker is suggested and proved to be true; and on motion of complainants, it is ordered the cause be revived against Minerva N. Rucker, his widow, and John W. Rucker, Mary A., Virginia and Sarah M. Rucker, his children and heirs at law, and that scire facias issue to warn them.”
At the March Term, 1862, this order appears: “In this case, it appearing to the Court that scire facias has been regularly served on the widow and heirs of Perry Rucker, and the widow failing to answer, judgment pro confesso is entered against her, and on motion of complainant, L. M. Ellis is appointed guardian ad litem of the minor heirs of said Perry Rucker; and it is further ordered, on motion, that judgment pro confesso be entered against the other defendants, except Mahala Rucker, guardian, &c., who has filed her answer; and thereupon the said L. M. Ellis, guardien, &c., files his answer.”
The appearance of Ellis, even though he had been properly a guardian ad litem, did not affect the minors, nor bring them before the Court, as he could not, by any act of his, waive the service of process. 1 Swan, 75;2 Swan, 197.
The personal representative of Perry Rucker is not before the Court, formally nor informally; that he should have been, if not absolutely necessary, was highly proper.
The suit in the County Court was revived against the widow and heirs of Perry Rucker on mere motion, and without the issuance of scire facias, and amounted to no revivor.
By the terms of the order proposing to revive against the widow and heirs of Perry Rucker, and after the revivor, a scire facias is directed to “issue to warn them.” We are wholly unable to discover any necessary office of a scire facias at this stage of the proceedings, and declare it to have been a nullity.
The order appointing a guardian ad litem “for the minor heirs of Perry Rucker,” not naming them, is a nullity. 1 Swan, 484. The answer of the guardian ad litem, Ellis, did not cure this error. No guardian ad litem could have been properly appointed until after service of process upon the minors, bringing them before the Court, and making them parties.
There was no publication as to non-residents--the principal defendant in the suit, and the Clerk or Commissioner who sold the slaves, saying, in his answer, he has no recollection of it, and can not say, from his memory, that he did make publication, but supposes he did so, because it was his duty to have done so. This is said in response to the positive allegation of the bill in this cause that publication was not made. There is in the record no order for publication. The sale is ordered upon the report of the Clerk, based upon the testimony of two witnesses, neither of whom seems to have known the slaves, and who simply gave it as their opinion, without assigning any sufficient reason, that “the slaves should be sold, and the proceeds distributed and placed at interest for said minors.”
By the decree, no notice or advertisement of time of sale is directed, nor is there any sufficient evidence of notice or advertisement of sale. It directs “that R. P. Moore sell said slaves to the highest bidder,” &c., without showing in what capacity or office he is to sell.
It is manifest, from the foregoing errors and omissions, that the sale of the slaves was absolutely void.
A purchaser at a sale under a decree of Court may demand a good title, and if the Court is able to give him that, he has no reason to complain that the proceedings are irregular; that is nothing to him. This, of course, can only be done when the parties interested are all before the Court, and a case is made out to give the Court jurisdiction; otherwise the Court could not decree him a good title, and for that reason would not compel him to pay his money. Swan v. Newman, 3 Head, 288.
All the parties in interest were not...
To continue reading
Request your trial
-
Brown v. Brown
...where that execution is based upon a void judgment. Douglass v. Joyner, 60 Tenn. 32; Wooten v. Daniel, 84 Tenn. 156; Rucker v. Moore, 48 Tenn. 726. In addition if the judgment of the Circuit Court which the defendant wife sought to enforce is void for want of jurisdiction, it can bind no on......