Wright v. Hink

BURGESS, P. J. — This is an action to cancel the satisfaction, entered of record, of a deed of trust, entered by the beneficiary on the deed records of Cape Girardeau county, and to vest in plaintiff and her heirs, title to a certain tract of land, described in the petition, lying and being in said county. There-was judgment for plaintiff, in accordance with the prayer of the petition, from which judgment defendants appeal. The case is brought here under the provision of section 813, Revised Statutes 1899, by filing in this court a copy of the judgment in lieu of a. complete transcript. [132] Appellants have also filed a printed abstract of the record, as provided by said section they might do. While the judgment recites, and the record shows, that the defendants Alexander and Joel Nunn were minors at the time of the institution of the suit, and the court appointed a guardian ad litem for them, by whom they answered, it does not appear from the petition that they were minors, or, from the record that Joel Nunn was ever served with process, or, from any affidavit filed, that Alexander Nunn was a non-resident of this State, although several unsuccessful efforts were made by plaintiff to have him served with process in the State of Illinois. In the absence of an allegation in the petition, or an affidavit filed with it, or thereafter filed, that said Alexander Nunn was a non-resident of this State, there was no authority to issue a summons for him, beyond its limits, and the service of such summons, as to him. was a nullity. [Secs. 575, 582, R. S. 1899.] Until process was served upon Joel Nunn and Alexander Nunn, either personally, or constructively by publication, as provided by the statutes referred to, the court had no jurisdiction over them, and was without authority to appoint a guardian ad litem for them, and his appearance in the case, in this behalf, was of no binding force or effect upon them. While we are requested by both parties to pass upon the case just as if all the defendants were properly and legally served with process, yet as Joel and Alexander Nunn are necessary parties to the suit, and as this court has no jurisdiction over them, whatever might be said as to them would be merely obiter, and we must decline to do so. The judgment is reversed and the cause remanded, to be proceeded with in accordance with the views herein expressed. All concur.