Erwin v. Carson

Campbell, J., delivered the opinion of the court. It is conceded that the return of the sheriff on the summons for the infant defendant does not show that it was served on the father, mother or guardian of such infant, or that she had none in this State, and that, according to Ingersoll v. Ingersoll, 42 Miss. 155, the Chancery Court could not, upon such a return, appoint a guardian ad litem, except on the application of the infant; but the rule announced in the case mentioned has been criticised by counsel for the appellee as unsound, and we are asked to decline to follow it, and to overrule it. Under the statute regulating the manner in which service of process upon an infant shall be made, Code 1857, art. 64, p. 489 (Code 1871, § 704), it is necessary for the record to show service on the father, mother or guardian of such infant, or that he or she has none in this State, before the court can acquire jurisdiction over the infant. All that the return of the [285] sheriff ordinarily can show is that the infant has no father, mother or guardian in his county. The sheriff is not presumed to know, and is not required to state, any fact in his return pertaining to the territory of the State beyond the limits of his own county. As the process for an infant is to be served on the father, mother or guardian, “ if he have any in this State,” and as such may be in his county, the sheriff should return that he has executed the process on the father, mother or guardian, or that there is none such in his county; and upon this return, if it shows no father, mother, or guardian in that county, it may and should be shown to the court that the infant has no father, mother or guardian in any other county of this State; and this fact should be recited in the decree for the appointment of a guardian ad litem. Until the process is executed on the father, mother or guardian, or it is made appear that the infant has none in this State, the court Cannot legally appoint a guardian ad litem for such infant ; Mr service on the father, mother or guardian, if any in is part of the required service on the infant. It is n^^^^Hüat the return of the sheriff must show that the in-fantTSrno father, mother or guardian in this State ; and in saying this the language used in the case cited is inaccurate ; but the record must show the fact, in order that it may be seen that the court had acquired jurisdiction of the person of the infant by legal service of the process. In this case it nowhere in the record appears that the father, mother or guardian of the infant was served with process, or that there was none such in this State. Decree reversed, decree appointing a guardian ad litem set aside, and cause remanded.