Wheeler v. Ahrenbeak
| Citation | 54 Tex. 535 |
| Decision Date | 18 March 1881 |
| Docket Number | Case No. 1217. |
| Parties | C. A. WHEELER ET AL. v. I. B. AHRENBEAK. |
| Court | Supreme Court of Texas |
OPINION TEXT STARTS HERE
ERROR from Waller. Tried below before the Hon. W?? H. Burkhart.
Chas. A. Harris, for plaintiff in error.
T. S. Reese, for defendant in error??
I. Acceptance of service by the minor defendan??s conferred jurisdiction upon the court as effectively as ??rvice of citation, etc., could have done. Pasch. Di??, 1432; Jewett v. Miller, 19 Tex., 291;Battle v. Eddy, 31 Tex., 370.
II. Neither service nor waiver of serv?? was necessary to give the court jurisdiction of the minor defendants, it appearing that a special guardian was appointed for them, who qualified as required by law, and appeared and agreed to the judgment. Kegan?? Allcorn, 9 Tex., 25.
February 8, 1869, G. H. Wheeler and C. A. Wheeler executed and delivered the note here sued upon, and which recited that it was secured by a lien on certain real property therein described. Subsequently G. H. Wheeler died. This suit was brought by Ahrenbeak, defendant in error, against the co-obligor, C. A. Wheeler; also against Mrs. Mary Wheeler, surviving widow of G. H. Wheeler, deceased, and his children, two of whom, Annie and Ida Wheeler, are minors, praying for personal judgment against C. A. Wheeler, and to enforce, as against all the defendants, the lien on the property.
Service of the petition was accepted and citation waived by all the defendants, including the two minors, for whom a guardian ad litem was appointed, who accepted, qualified, and appeared as such in the suit.
Personal judgment and enforcement of the lien as prayed for was rendered below, from which this writ of error is prosecuted.
The material question in the case is the alleged error of the court in the appointment of a guardian ad litem for the minor defendants, without service of process upon them.
It is a familiar rule that there is a marked distinction between the right to impeach a judgment in a collateral proceeding, and the right to impeach it in a direct proceeding by appeal or error. In the former case the right must be based upon some ground which renders the judgment absolutely void--as the want of jurisdiction; in the latter it may be based upon mere irregularity, which renders it voidable only. Burditt v. Howth, 45 Tex., 466;Fitch v. Boyer, 51 Tex., 344;Murchison v. White, 54 Tex., 78.
In the case of McAnear v. Epperson, decided at the present term, it was held that the want of personal service on minor defendants, when they were represented by a guardian ad litem, did not on collateral attack render the judgment absolutely void. It was, however, in that case strongly intimated that the court might have reversed the judgment below had the question been raised, as in this case, on direct proceeding by appeal or error.
That a judgment is voidable and should be reversed on appeal or error when rendered against resident minor defendants who have no general guardian, and have never been personally served with process, even though they were represented by guardian ad litem, is in our opinion the correct practice, much less liable to abuse, and is supported by abundant authority. Preston v. Dunn, 25 Ala., 513;Jones v. McGinty, 3 Dana, 425;Shropshire v. Reno, 5 Dana, 584;Good v. Norley, 28 Iowa, 201, citing numerous authorities; Stanton v. Pollard, 24 Miss., 156.
In this last named case it is said that in England the usual practice in chancery was not to appoint a guardian ad litem until the infant was brought into the actual presence of the court, in order to ascertain if of proper age to make a choice, and whom he desired to act for him.
The case of Kegans v. Allcorn, 9 Tex., 25, was instituted in 1838, before the introduction of the common law, and the court say: “We have been referred to no provision of the Spanish law in force at the time which required that, to divert the interest of the estate, the heirs be made parties.”
In the case of Thomas v. Jones, 10 Tex., 52, the question seems to have but incidentally before the court, as it is said that the only error assigned which required notice was, that the court proceeded to judgment against the heirs, without making the administrator a party. Beside, that case was not an original proceeding against the heirs, but one which had been instituted against the ancestor, and which under the statute did not abate by his death.
The question then recurs, whether the acceptance of service by the minors...
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Morris v. Drescher
...of a judgment by default, for the reason that she was without legal capacity under the law to waive any of its requirements, Wheeler v. Ahrenbeak, 54 Tex. 535; De Proy v. Progakis, Tex.Com.App., 269 S.W. 78; Sprague v. Haines, 68 Tex. 215, 4 S.W. 371; but this is not true or applicable to a......
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...no authority to appoint a guardian ad litem for minors on whom the court had not acquired jurisdiction by service of process. Wheeler v. Ahrenbeak, 54 Tex. 535. A guardian appointed under such circumstances could not bind the minor by any decree rendered in the cause. The decree was of no m......
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...party to a proceeding. "The Courts of this State have always recognized the necessity for personal service upon a minor. In Wheeler v. Ahrenbeak, 54 Tex. 535 (1881), the Court pointed out the necessity of complying with a statutory requirement for service upon a defendant and concluded that......
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...cases import absolute verity. Burditt v. Howth, supra; Treadway v. Eastburn, 57 Tex. 209; Fitch v. Boyer, 51 Tex. 336, 344; Wheeler v. Ahrenbeak, 54 Tex. 535, 536. The recitals in the judgment in this case are not about jurisdictional matters. They are about proceedings in course of the tri......