Sealey v. Smith
| Decision Date | 05 April 1921 |
| Docket Number | Case Number: 10088 |
| Parties | SEALEY v. SMITH et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Process--Service of Summons--Compliance with Statutes. Statutes prescribing the manner of service of summons are mandatory and must be strictly complied with in order to vest the court with jurisdiction.
2. Infants--Service of Process--Requisites --Jurisdiction--Validity of Judgment. Under section 4721, Revised Laws of 1910, in an action against a minor defendant under the age of 14 years the service of summons must be upon the minor and guardian or father, or if neither of those can be found, then upon his mother, or the person having the care or control of the infant, or with whom he is living. If neither of these can be found or if the minor be more than 14 years of age, service on him alone will be sufficient. If the service of summons be not made in strict compliance with the statute, the court has no jurisdiction to render judgment against the minor, and a judgment rendered against a minor where the statute has not been strictly complied with is void and confers no right upon the parties obtaining the same.
3. Same--Defense of Infants -- Guardian ad Litem. Under section 4688, Revised Laws of 1910, Held, that said statute is mandatory and must be strictly complied with.
4. Same--Fraudulent Judgment. In an action against an infant defendant, where the attorney representing parties whose interests were adverse to that of the infant defendant secured the signature of the legal guardian of the infant defendant to an answer prepared for said infant defendant and filed the same in the cause and obtained a judgment against said infant upon the same day the answer was filed, and no defense was made for said minor, held, such a judgment was obtained through fraud and should be set aside.
5. Marriage--Validity--Indian Custom. Marriages contracted between tribal Indians according to the usages and customs of their tribe, at a time when the tribal government and relations are existing, in the absence of some statutory law governing and regulating said Indian tribes, rendering such marriages invalid, will be unheld by the courts in this state.
6. Depositions--Admission of Portion of a Deposition. A portion of a deposition is admissible in evidence if the portion offered contains all the evidence the witness testified to upon the subject to which the evidence is directed.
Adrian Melton. A. J. Bristow. and D. M. Cavaness, for plaintiff in error.
Harry Hammerly, for defendants in error.
¶1 The plaintiff in error, Gouldy Sealey, a minor, by her legal guardian, Charles S. Brice, commenced this action in the district court of Grady county against A. D. Smith et al., on the 27th day of April, 1917, to quiet title to the lands described in her petition, said lands being the allotment of Adam Sealey, deceased, for possess on, rents, and profits. And as part of the relief prayed for in her petition she asks that a purported judgment rendered in the district court of Grady county on the 24th day of June, 1910, in an action yherein Raymond O. Hawk was plaintiff and Henry Sealey, Parmelia Jones, Robert Jones, Bensley Perry, Ledicy Nelson and Gouldy Sealey were defendants in cause No. 2357, be set aside, canceled and held for naught, for the reason that said judgment was procured by fraud; that the court was without jurisdiction of the subject-matter or the parties to said action, and that the defendant in said cause, Gouldy Sealey, was a minor under the age of 14 years; that said judgment was rendered against her without having been served with summons as required by law; and that no guardian ad litem was appointed to defend her in said cause as required by law. The defendants, A. D. Smith, V. Simpson. Samuel A. Long, Raymond O. Hawk. J. W. Underwood, A. C. Neel, and J. E. Whitehead, filed answer to the petition of the plaintiff, denying each and every allegation contained in the petition, and as a second and further defense to the petition of plaintiff pleaded the judgment in cause No. 2357, and alleged that said judgment was rendered after due, regular, and timely service of summons was made upon Gouldy Sealey, and that the issues involved in this action were completely adjudicated by the judgment rendered in cause No. 2357. To the answers of defendants the plaintiff filed reply, and upon the issues joined a trial was had on the 29th day of January, 1918, and after the plaintiff had introduced her testimony and rested, the court sustained the defendants' demurrer to the plaintiff's testimony and rendered judgment in favor of the defendants. To reverse this judgment, this appeal is prosecuted. The plaintiff has 14 different assignments of error in her petition, but as we view the record, all the assignments may be considered together. The land involved in this action is the allotment of Adam Sealey, a full-blood Chickasaw Indian, enrolled opposite roll No. 186, who died intestate in Pittsburg county on or about the 12th day of October, 1904; and the lands were allotted in his name subsequent to his death by an administrator. On the date of the death of the allottee, Adam Sealey, he was living with a woman by the name of Ledicy Sealey, who was a full-blood Indian. It appears from the record that Adam Sealey had been living with Ledicy Sealey for more than four years on the date of his death, and as a result of his cohabitation with this woman the plaintiff in this action, Gouldy Sealey, was born on or about the 16th day of March, 1904, and was enrolled as a full-blood Chickasaw Indian on July 12, 1965, as the child of Adam Sealey and Ledicy Sealey. The undisputed testimony offered on behalf of the plaintiff in this action was that Adam Sealey and Ledicy Sealey held themselves out as husband and wife and were so recognized in the community where they resided. According to the record in the case at bar there are two questions that are decisive of the issues involved in this cause. The first to be considered is whether or not the former judgment rendered in cause No. 2357 is res judicata of the issues involved in this cause. The plaintiff in this case was a minor defendant in cause No. 2357, which judgment the defendants claim is a bar to the prosecution of this action. It appears from the record that J. E. Whitehead, one of the defendants in this cause, was the attorney who represented Raymond O. Hawk, the plaintiff in cause No. 2357; and that about two years prior to the filing of the former action had a written contract with the mother and guardian of this minor plaintiff in this action to represent her in recovering the lands in controversy in the action; that he concluded after investigation that this minor plaintiff, Gouldy Sealey, had no interest in the lands. No doubt he believed she was the illegitimate child of the deceased allottee, Adam Sealey, and, having arrived at that conclusion, filed an action on behalf of Raymond O. Hawk who had purchased the lands in controversy from other parties claiming to be the legal heirs of Adam Sealey, deceased, and made Gouldy Sealey a defendant in the action, and attempted to have service of summons made upon her. The first return made upon the summons failed to show any service upon the minor defendant in the cause, but before the summons was returned from Pittsburg county to Grady county, where the cause was pending, Mr. Whitehead, the attorney for the plaintiff in the action, wrote an amended return which showed service upon the minor defendant, but failed to show any service upon the guardian of the minor defendant. The judgment rendered in the cause pleaded as a bar to this action, affirmatively discloses that Gouldy Sealey was a minor defendant under the age of 14 years, but fails to disclose that any service of summons whatever was made upon her, but does show that her legal guardian, Phillip Nelson, filed an answer the same day the judgment was rendered, but no appearance was made by the guardian or defense made, and the evidence discloses, in the hearing of the motion for a new trial in this action, that the answer filed by the general guardian in the case was filed by Phillip Nelson as guardian of Gouldy Sealey, at the request of Mr. Whitehead, and Phillip Nelson made affidavit, which was presented on the motion for new trial in this cause, that he thought Mr. Whitehead was representing his ward in said former cause. The deputy sheriff that claimed to have served the summons in said former cause No. 2357 made an affidavit that the first return signed, which showed service of summons upon the guardian of Gouldy Sealey, but no service upon the minor, spoke the truth, but on the hearing of the motion for new trial in this cause testified that he served three Indians, one Indian girl and two women; that he had no recollection of serving four. We are unable to understand how the trial court in the case at bar can sustain the validity of a judgment divesting a minor defendant of valuable property under the record as it appears in the case at bar. It is the duty of a trial court to guard the interests of infant defendants and see that every available defense is made for them in the trial of a cause, and under the statutes in force in this state it is mandatory upon the trial court to appoint a guardian ad litem to represent infant defendants. The first duty of the trial court is to examine the service made upon a minor defendant, and if the same is regular, approve the same, and then appoint a guardian ad litem, who must make the defense for such defendant. Section 4688 of the Revised Laws of 1910 provides:
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