Clark v. Gilmer

RICE, J. Where non-resident infants are named in a bill as defendants, and their father is dead, but their mother is [266] alive, and her place of residence known to the complainant, they may be made defendants by publication, and sending a copy of the order to their mother. It is irregular to appoint a guardian ad litem for them, or to render-a decree against them, before they are brought into court by such publication and sending. — Rules, 4, 40, 41; Walker v. The Bank of Mobile, 6 Ala. R. 452; Hodges v. Wise, 16 Ala. R. 509; Erwin v. Ferguson, 5 Ala. R. 167. In the present case, five of the persons named in the bill as defendants, are non-resident infants, whose father is dead, and whose mother lives in the same place where they live. Her name is Mary A. Lewis. There is no proof that a copy of the order of publication ever was sent to her,.or that she was ever known by the name of Elizabeth Lewis. But a copy of it was sent to Elizabeth Lewis, “ as the mother of said infants.” Sending the copy to Elizabeth Lewis, “ as the mother of'said infants”, was not sending it to Mary A. Lewis, who is in fact their mother, nor equivalent thereto, (20 Pick. Rep. 439; 2 Eng. (Ark.) Rep. 395); and therefore did not authorize the apppointment of a guardian ad litem for them. And this appointment being irregular, the subsequent proceedings and decree, by which these infants are divested of title to the land in controversy, cannot be sustained. As the effect of this decision will be, to require of the complainant a proper publication and sending of the order, as well as the taking of his testimony anew, so far as the infants are concerned, it is unnecessary, and perhaps improper, to express our opinion upon the merits of the case as disclosed by the testimony set forth in this record. The infant defendants cannot be concluded by this testimony; and we cannot know that the testimony hereafter to be procured, and upon which their rights must be determined, will be substantially the same. as that now presented to us. As between them and the complainant, we leave the case as open as it was before any order was made in it. The decree of the chancellor is reversed, and the cause remanded. The appellee must pay the costs of this court. It is proper to say, that the error for which the decree is reversed, is one which escaped the notice of the solicitors and the chancellor, and was not even noticed by the counsel on [267] the argument in this court. Bnt, as it is an error to tbe prejudice of infants, and we see it on the record, and the assignment of errors is -broad enough to embrace it, we cannot pass it over, nor allow the decree to stand. — Sanford v. Granger, 12 Barb. Sup. Ct. Rep. 392.