Court Record of Harrison Sconce vs James W. Whitney
Source: Records Of Cases Illinois
Harrison Sconce et al., plaintiffs in error, v. James W. Whitney,
administrator, defendant in error.
Error to Pike.
In chancery, the summons must be served by copy. (a)
Where the complainant chooses to proceed against infants under the statute,
without service of process, it is the duty of the court to exact of the
guardian a vigorous defense of their interests, and it is wrong to take a bill
for confessed against them, under any circumstances.
The bill in this case was filed to procure the re-conveyance of certain lands.
The respondent died after the bill was filed, and proceedings were had against
his survivors, and a decree entered upon the prayer of the bill in favor of
the complainant. The heirs of the respondent, some of whom were minors, were
never served with process, nor were they represented in the case. The widow of
the first respondent married Sconce, one of the plaintiffs in error. The
process was served upon one of the respondents by copy, and upon others by
reading. The decree was rendered by Minshall, Judge, at the March term, 1850,
of the Pike Circuit Court. A guardian ad litem was appointed for the infants,
who did not appear or answer for them.
C. L. Higbee and J. Sibley, for plaintiffs in error.
There was no service of process on Mary Sconce, the wife of plaintiff in
error. Service on the husband is not a service on the wife, where her property
is the subject matter of the suit: 2 John. Ch. R., 139; 9 Vesey Ch. R., 485; 6
Madd. Ch. R., 172.
There is no appearance of the guardian ad litem, of the infants before the
final decree. No default or decree, pro confesso, can be entered against them:
3 Harrison, 603; 3 J. J. Marshall, 544; 5 Call, 459; 4 Gilman, 370.
Browning & Bushnell, for defendant in error.
Caton, J. There are objections to this decree which are insurmountable. Mrs.
Sconce was never properly brought into court. The most that can be said, is,
that the process was served upon her by reading, when the statute required
that she should be served by copy. The infants were never served with process
in any way, nor did their guardian file any answer in their behalf. The court
should have compelled the guardian to answer; and it was wrong for the court
to take the bill for confessed as to them, under any circumstances. It was the
duty of the Circuit Court to see that the guardian performed his duty for
which service a provision is made for his compensation. Particularly where the
complainant chooses to proceed against infants under the forty-seventh section
of the twenty-first chapter, Revised Statutes, without service of process, as
appears to have been the case here, it was the duty of the court to exact of
the guardian a vigorous defense of the infants' interests. In this case, so
far from that having been done, not even a formal answer by the guardian was
required, but the bill was taken for confessed; precisely as if they were
capable of protecting their own interests; and there was no duty resting upon
the court, or the guardian, to protect them. Were such a practice once
sanctioned, there would be an end of all security to infants. If a complainant
will take a decree under such circumstances, either through design or
inadvertence, he must not expect to sustain it in this court.
Let the decree of the Circuit Court be reversed, and the suit remanded.
(a) R. S. 1874, ch 22, sec 11.
(b) As to infant defendants, see Enos et al. v. Cappe, post 255; Rhoads v.
Rhoads, 43 Ill., 239, and cases cited: Waugh v. Robbins, 38 Ill., 182
(annotated edition) and note; Hall v. Davis, 44 Ill., 494 (annotated edition),
and note; Hitt v. Ormsbee, post 166; Reddick v. State Bank of Ill., 27 Ill.,
Reports of Cases Determined in the Supreme Court of the State of Illinois from
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill.