Billups v. Brander

56 Miss. 495

• Court: Mississippi Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

This is an appeal from a decree of sale rendered in proceedings of insolvency instituted under art. 98, pp. 448, 449, of the Code of 1857.

The article declares that “if any of the distributees or devisees be infants, the process shall be served upon their guardian ; and if no guardian has been appointed, the court shall appoint a guardian ad litem, who shall attend to the interests of the infants.”

Art. 32, p. 431, declares that “ no decree shall bind or conclude a minor having a guardian resident in this State, unless the guardian shall be served with process. If the guardian be a non-resident, he must be cited by publication.” No guardian was summoned in this case, the petition alleging that it was not known whether there was one. This is not sufficient. A guardian must be cited, or it must in some way be affirmatively made to appear that there is none, or that he is interested in the matter. Winston v. McClelland, 43 Miss. 254; Wells v. Smith, 44 Miss. 296; Erwin v. Carson, 54 Miss. 282.

It will be borne in mind that this is an appeal from the decree of sale, and not an attack upon a title acquired under the sale.

Reversed.