McDermaid v. Russell

Mr. Justice Breese delivered the opinion of the Court: The only question we can consider on this record is, as to the appearance in court of certain infant defendants. It appears that Lucretia A. Russell, the defendant in error, filed a bill in chancery in the McHenry Circuit Court, for the purpose of having adjudged to her, the share of the lands of her deceased husband, who died intestate and childless, she claiming as statutory heir. In her bill, she made the brothers and sisters of her husband, and their descendants, defendants, as his heirs at law, and prayed process against them. Among these heirs at law were three minors, namely, Thomas Russell, James Russell and Isabella Russell, who had no other notice of the pendency of the suit than notice by publication. On proof of notice by publication, these minors were ruled to answer instanter, and, on failing so to do, the bill was taken as confessed against them. At a subsequent day of the term, on motion of complainant, the default as to these infants was set aside, whereupon R. 1ST. Botsford was appointed guardian ad Utem for them, who filed an answer. The objection taken to this notice of publication is, that the affidavit of non-residence does not appear to have been sworn to before any officer. For that omission, it was no affidavit, and gave no authority to the court to enter an order of publication. Another objection is, that the summons issued on filing the bill required the defendants to appear in court on the second Monday of October, 1863, and the notice as published required them to appear on the fourth Monday of that month, “ give bail and enter their appearance, or that judgment will be entered against them by default and the property attached sold.” This is no proper notice in such a proceeding, but if the term was right, corresponding with the term named in the summons, it might be a good notice in an attachment cause. The record shows the term of the court commenced on the second Monday of October. The notice, then, to appear on the fourth Monday was nugatory and void, and consequently the appointment of a guardian ad litem for the infant was also void, for they were not in court, amenable to any of its orders. Hone of the defendants being properly in court, the stipulation by the attorneys did not bring the infants into court. They could not be brought before the court in that way. All the evidence not being in the record, we express no opinion on the other points made. For the errors specified, the decree must be reversed and the cause remanded. Decree reversed.