Tanner v. Schultz

• Decision Date: 29 January 1924
• Docket Number: Case Number: 12608
• Citation: 1924 OK 119,97 Okla. 132,223 P. 174
• Parties: TANNER, Adm'x, et al. v. SCHULTZ et al.
• Court: Oklahoma Supreme Court

1924 OK 119

223 P. 174

97 Okla. 132

TANNER, Adm'x, et al. v. SCHULTZ et al.

Case Number: 12608

Supreme Court of Oklahoma

Decided: January 29, 1924

Error from District Court, Harper County; Arthur G. Sutton, Judge

Syllabus

¶0 1. Infants--Protection by Courts--Guardian ad Litem.

It is the duty of courts to guard with zealous care the rights of minors in actions brought against them. No presumption against an infant can be permitted, but, on the contrary, every presumption is indulged in his favor, and a guardian ad litem must see to it that every question available in the defense of his ward is urged and acted upon by the court; and in case of the failure of the guardian ad litem to properly discharge his duty in that or any other respect, it becomes the imperative duty of the court to protect the infant's rights.

2. Same--Service of Process.

Where the defendant is a minor under the age of fourteen years, service of summons must be upon him and upon his guardian or father, or, if neither of these can be found, then upon his mother, or the person having the care and control of the infant, or with whom he lives; if neither of these can be found, or if the minor be more than fourteen years of age, service on him alone will be sufficient.

3. Same--Waiver.

An infant cannot waive the issuance and service of summons, nor can any person, not even his guardian, do so for him.

4. Same--Service of Process a Prerequisite to Appointment of Guardian ad Litem.

A court cannot appoint a guardian ad litem for an infant until after service of summons has been made as required by statute. Bolling et al. v. Campbell, 36 Okla. 671. 128 P. 1091.

Commissioners' Opinion, Division No. 3.

COUNSEL: Wade H. Loofbourrow and R. H. Loofbourrow, for plaintiffs in error.

B. F. Willett and M. A. Holcomb, for defendants in error.

JONES, C.

¶1 On the 8th day of February, 1915, Gertie Schultz instituted suit against Frederick C. Tanner in the district court of Harper county, state of Oklahoma, No. 902, to cancel a certain deed of conveyance to lanes in Harper county occupied by the defendant, Frederick C. Tanner, plaintiff alleging that the deed under which the defendant held the property was a forgery, and asking that same be canceled. The record discloses that Frederick C. Tanner, the defendant herein, was the son of Mary E. Tanner and S.W. Tanner. The land in controversy seems to have originally been the property of the said Mary E. Tanner and S.W. Tanner. Mary E. Tanner died November 1, 1908, and a short time thereafter, according to the evidence of the plaintiff herein, Gertie Schultz, nee Tanner, was induced by her father, S.W. Tanner, to subscribe or sign the name of her mother, Mary E. Tanner, to a certain instrument, which, according to the evidence, afterwards developed to be the deed in question. On October 16, 1916, subsequent to the filing of this suit the defendant, Frederick C. Tanner, died, and one year and one day thereafter the suit, on motion of plaintiff, was revived in the name of Essie Tanner, wife of the deceased, who was the administratrix of Frederick C. Tanner's estate and in possession of the property in controversy at all times after her husband's death. Various pleadings were filed, and on March 4, 1919, on motion of the plaintiff, Gertie Schultz, the cause No. 902 was dismissed without prejudice at the cost of the plaintiff, and on March 29, 1919, a petition was filed and numbered 1365, constituting a new suit or action by Gertie Schultz and Grace Depew, who by leave of the court had been made a party plaintiff in cause No. 902; this suit was against Essie Tanner, administratrix of the estate of Frederick C. Tanner, deceased, Helen Tanner, Ruth Tanner, Gladys Tanner, Alice Tanner, Frederick Tanner, and Clayton Tanner, minor children of Frederick G. Tanner, deceased, and Essie Tanner. A demurrer was thereafter filed to the petition and while the record fails to disclose what disposition was made of same, we assume it was sustained as the record discloses that on June 28, 1919, an amended petition was filed. And on December 19, 1919, answer was filed by defendant Essie Tanner. Reply filed January 3, 1920, and on March 23, 1921, the issues thus joined were tried by the court without the intervention of a jury and resulted in judgment by the court for the plaintiffs, from which judgment the defendants appeal.

¶2 The first proposition or contention made by plaintiffs in error is that the action...