Moore v. . Gidney

ByNUM, J. When infant defendants, in a civil action or special proceeding, have no general or testamentary guardian, before a guardian ad litem can be appointed, a sum *39 mons must be served upon such infant, and a copy of the complaint also be served or filed according to law. After the guardian ad litem is thus appointed in a special proceeding, a copy of the complaint, with the summons, must be served on the guardian. All this does .not give the Court jurisdiction to proceed at once in the cause; for it is further provided, that not until after twenty days’ notice of said summons and complaint, and after answer filed, can the Court proceed to final judgment and decree therein. Bat. Rev., chap. 17, sec. 59. See Allen v. Shields, 72 N. C. Rep., 504, where it is doubted by the Court whether personal service on the infant is not indispensable, with a strong intimation that it is. So careful is the law to guard the rights of infants, and to protect them against hasty, irregular and indiscreet judicial action. Infants are, in many cases, the wards of the Courts, and these forms, enacted as safeguards thrown around the helpless, who are often the victims of the crafty, are enforced as being mandatory, and not directory, only. Those who venture to act in defiance of them, must take the risk of their action being declared void, or set aside. In this case the guardian, ad litem, was appointed before the infants were brought into Court by summons. No summons or copy of the complaint was served on them until after the decree of sale. In law, they were undefended. Their rights and property were attempted to be adjudicated upon and taken from them, under the sanction of law, but in violation of its letter and spirit. They had no day in Court, and, as to them, the proceedings were irregular, and subject to .be set aside. It may be, and it is alleged, that inasmuch as the estate is insolvent, and the proceeds of. the sale of the lands must all be applied in payment of the debts of the intestate, the infants have no substantial interest to be affected by the decree, and are, therefore, not injured. But as they were not *40 in Court, and could not be heard, these alleged facts do not judicially appear to us, and we cannot assume them to be true. What they may be able to show in defence of this proceeding, when they are properly brought in Court, and are represented by a guardian, duly constituted, who will discharge his duty to them, we cannot anticipate. Sufficient for the day is the evil thereof. This application is treated as a motion in the original proceeding for the sale of the land, (which action is still pending,) to set aside for irregularity the decree of sale and all subsequent proceedings- We have disposed of the case as far as the infants are concerned. We next proceed to examine it so far as it affects the rights of the wddow herself. She filed no answer in her own right, but answered in the right of the infants only. She alleges that she was not, at the time of her answ7er, apprized of the facts which constitute her equitable right to the largest tract of land, to-wit: the Wilson tract. She further alleges that her answer to the petition for the sale of the land, was filed for her, by the attorney of the plaintiff; and that she was at the time so troubled and distressed in mind, by the recent death of her husband, as to be disqualified for business, and thus was induced to assent to the answer, without a knowledge of her rights. These allegations are not directty denied. But it is denied that the counsel of the plaintiff acted as the defendant’s counsel, farther than in drawing up her answer; and, we are satisfied that no improper influence was intended, Yet the law does not tolerate that the same counsel may appear on both sides of an adversary proceeding, even colora-bly; and in general, will not permit a judgment or decree so affected to stand, if made the subject of exception in due time by the parties injured thereby. The presumption, in such cases, is that the party was unduly influenced by that relation, and the opposite party cannot take the benefit of it. It does not appear affirmatively in this case that Mrs. Moore *41 the defendant, was not influenced to her prejudice and thrown off her guard thereby. The purity and fairness of all judicial proceedings should so appear when urawn in question. Our attention has been called by the piaintiff, since the argument, to the case of White v. Albertson, 3 Dev. 241, cited in McAden v. Hooker, 74 N. C. Rep., 24. That was an action of ejectment, and the plaintiff, in making out his title, introduced in evidence the record of a suit and judgment against the heirs of one Muse, under whom he claimed. There was no service of the sci.far. upon the heirs, but service was accepted for them by Blount, the guardian. It was held by the Court, that although the service of the scire facias wras erroneous, as not having been against the heirs themselves, and that the judgment was therefore voidable, yet it was not void and could not be impeached in this collateral way. The case is not an authority for the plaintiff. An irregular judgment may be set aside by a direct proceeding for that purpose. That cannot be disputed, and that is the purpose here. This is a proceeding in the cause where the error was committed and the object of the motion is to vacate and set aside the irregular decree, and sale under it. Wolfe v. Davis, 74 N. C. Rep., 597. There is no error. Per Curiam. Judgment affirmed.